Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 1956

IN THE HIGH COURT OF DELHI AT NEW DELHI
Jasmeet Singh, J.
Santosh – Appellant
Versus
State of Delhi – Respondent
Bail Appln. 4288 of 2021
Decided On : 17-01-2023

Advocates appeared:
Rahul Sharma, Ishwar Singh, S. Santanam Swami Nathan, Ms. Abhilasha Sherawat, Akshat Maheshwari, Deepak Ghai, Ms. Yash Kumar, Advocates, for the Petitioner.
Aashneet Singh, APP, for the State.

The importance of following the prescribed procedure for drawing samples as per Standing Order 1/88 in NDPS cases.

Headnote:
NDPS Act - Grant of Bail - Section 21 - Standing Order 1/88 - [Section 21, Standing Order 1/88]
Fact of the Case:

The applicant sought bail in a case under Section 21 of NDPS Act. The contraband was found in 258 pouches, and the applicant argued that the samples were mixed by the respondent, rendering them vitiated/contaminated. The court referred to various judgments and Standing Order 1/88, emphasizing the importance of drawing samples from each individual container/package and testing them separately.
Finding of the Court:

The court found that the procedure for drawing samples was not followed as per Standing Order 1/88, causing serious prejudice to the applicant's case. It also noted that the quantity recovered did not fall within the ambit of commercial quantity, and the applicant's medical condition warranted release on bail.
Issues: Non-compliance with sample drawing procedure, quantity of contraband, medical condition of the applicant
Ratio Decidendi: The court emphasized the importance of following the procedure for drawing samples as per Standing Order 1/88 and considered the quantity of contraband and the medical condition of the applicant in granting bail.
Final Decision: The court allowed the application and directed the release of the applicant on bail with specific terms and conditions.

JUDGMENT

Jasmeet Singh, J. (Oral)--This is an application seeking grant of bail in FIR No.482/2019 under Section 21 of NDPS Act registered at PS Bharat Nagar, Distt. North West.

2. The FIR states that the applicant was apprehended at B-123 Block, J.J. Colony, Wazirpur. On her search, 33.59 gram of smack was found in 258 pouches.

3. As per the FIR, it is stated that the contraband from the 258 pouches was mixed and thereafter samples were drawn. Thereafter, notice under Section 50 was issued and thereupon proceedings were conducted.

4. It is stated by Mr. Sharma, learned counsel for the petitioner that as per FIR, it is clear that the samples were mixed by the respondent and hence, the sample itself is vitiated/contaminated. He relied upon the judgement of Coordinate Bench of this Court titled as "Ram Bharose vs. State" in Bail Application No.1623/22 where it has been observed:

"...as has been observed by the Co-ordinate Bench of this Court vide paragraph 15, 16, 17, 18 and 33 thereof to the effect:

"15. In view of the stringent provisions of the NDPS Act, the issue to be considered is whether the procedure specified under the Standing Orders can be flouted.

16. A combined reading of paras of the Standing Orders would show that there were more than one container/package is found, the respondent is required to draw a sample from each of the individual container/package and test each of the sample with the `field testing kit'. It is further provided that if the container/packages are identical in shape, size and weight then lots of 10 of 40 containers/packages may be prepared and thereafter representatives samples from each container/package in a particular lot are to be drawn, mixed and sent for testing.

17. Mixing of the contents of container/package (in one lot) and then drawing the representative samples is not permissible under the Standing Orders and rightly so since such a sample would cease to be a representative sample of the corresponding container/package.

18. In the present case, four packets containing suspicious powdery substance were found concealed in a `stroller bag'. On testing with the `field testing kit', the powder in each packet tested positive for heroin. The IO without weighing the contents of each individual packet, mixed the powder from all the 4 packets in one polythene bag and then drew the sample from the mixure.

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33. Resultantly, this court is of the view that the samples sent to the CRCL were not the representative samples. Besides, by mixing the contents of all the 4 packets before drawing any sample not only the sanctity of the case property in the individual packet was lost but also the evidence as to how much each individual packet weighed. In reaching the aforesaid conclusion, I also draw support from the decisions in Shajahan v. Inspector of Excise (DB) reported as 2019 SCC OnLine Ker 2685; Kulwinder Kumar vs. State of Punjab, reported as 2018 SCC Online P&H 1754 and Santosh Kumar vs. The State of Bihar passed in Criminal Appeal (SJ) No. 158/2016 decided on 30.08.2019".

5. This Court in judgement dated 14.12.2022 titled "Laxman Thakur vs. State" has observed that:

"7. The judgment of Sumit Tomar (supra) has been duly considered by the Coordinate Bench of this Court titled in a judgment titled as `Santini Simone vs. Department of Customs', [2020 SCC OnLine Del 2128] and relevant paras read as under:

"57.In Sumit Tomar v. State of Punjab, (2013) 1 SCC 395, the Court was examining the case where according to the prosecution, two plastic bags containing `bhooki' opium powder were recovered from the dickey of the car. The contents of both the bags were mixed and two samples of 250 grams each were taken out. The remaining contraband weighing 69.5 kgs were sealed in two bags and the samples were sent to Forensic Science Laboratory for examination. It was contended on behalf of the appellant that the procedure followed by the concerned seizing officials was irregular and the alleged contrab