Point of Law : Narcotic substances - Bail dismissed - Cough syrup bottles which are ordinarily available in market for treating cold and cough, cannot be said to have different concentration of medicines as they are prepared under same formulation as per their batch numbers.

ORDER :

RAJNISH BHATNAGAR, J.

1. The present bail application has been filed by the petitioner under Section 439 Cr.P.C. seeking bail in case No. VIII/06/DZU/2018 U/s 8(c), 21, 23 & 29 of NDPS Act pending in the court of Shri Ajay Kumar Jain, Special Judge, NDPS, New Delhi.

2. In brief, the facts of the case are that on 04.03.2018, a secret information received by Shri B.L. Bairwa, Intelligence Officer that two passengers may be apprehended with some Narcotic Drugs at IGI Airport. In pursuance of that on 04.03.2018, the intelligence officer along with the team proceeded to IGI Airport and apprehended two persons Taukir Alam and present petitioner Mohd. Yakoob. The baggage of accused Taukir Alam was searched and from the said baggage, two brown colour carton boxes were found and on opening the first carton box, a black colour polythene bag was found in the said box and on the side of the said polythene bag, packets of biri (Bharat Special Company) were kept and in the center, a black colour polythene was lying containing flips of wheat rice and was also containing phensedyl codeine cough syrup 100 ml bottle (10 mg codeine in each 5 ml) were concealed and on counting the same, they were found to be 50 in numbers and similarly, second carton box was opened and on opening, phensedyl 100 ml of 49 bottles were found and that way total 99 bottles were found from the baggage of Taukir Alam having batch No.PHB7236.

3. Thereafter, the baggage of present petitioner Mohd. Yakoob was opened and one brown colour carton was found and on opening the said brown colour carton the same also found to contain flips made of wheat rice in the side and was also containing phensedyl codeine cough syrup 100 ml bottle (10 mg codeine in each 5 ml) concealed and on counting the same, it was found 148 in numbers having batch No.PHB7217.

4. I have heard the Ld. counsel for the petitioner, Ld. SPP for the respondent (NCB) and perused the records of this case.

5. It is submitted by the Ld. counsel for the petitioner that out of 99 bottles only one-one bottle for two samples were taken out and kept separately and the remaining 97 bottles were kept in a carton in the case of Taukir Alam (co-accused) and similar is the case of petitioner Mohammed Yakoob from whom allegedly 148 bottles were recovered and one-one bottle for two samples were taken out and the remaining 146 bottles were seized and sealed. Ld. counsel for the petitioner submits that the procedure followed by the NCB (respondent) is not a proper procedure in drawing the samples and the NCB (respondent) should have drawn the samples from each recovered bottle which has not been done in the instant case and this is in complete violation of the sampling procedure and it cannot be said that all the bottles were containing the contraband as alleged. It is further submitted by the Ld. counsel for the petitioner that this violation in drawing the samples is a reasonable ground for the acquittal of the accused. He has placed reliance upon Sujit Tiwari Vs. State of Gujarat and Another 2020 (1) Crimes 141 (SC) and Edward Khimani Kamau Vs. Narcotics Control Bureau 2015 (8) LRC 313 (Del).

6. On the other hand, it is submitted by the Ld. SPP for the NCB (respondent) that the recovery relates to commercial quantity of contraband and there is an embargo of Section 37 of the NDPS Act. He further argued that in total 247 bottles were recovered from their baggage which they were taking to Riyad. It is further submitted by the Ld. SPP that there is no infirmity in drawing the samples as all the bottles were of the same size and had same label. He further submitted that the charges have been famed on 06.07.2019 and the framing of the charge has not been challenged by the petitioner or the co-accused. It is further submitted by the Ld. SPP that the recovery has been effected from the bag which the petitioner was carrying and the recovery of the seized contraband is not from the person of the petitioner so the provisions of Secti