Non-compliance with the sampling procedure may affect the prosecution's case, but the final determination of the sampling's validity should be made during the trial.

JUDGMENT

Amit Sharma, J.

1. The present application under Section 439 of the Cr.P.C. seeks regular bail in case FIR No. 54/2020, under Sections 20/29 of the NDPS Act, at P.S. Crime Branch.

2. The case of the prosecution under the status report, dated 11.01.2023, authored by Arvind Kumar, Assistance Commissioner of Police, ARSC, Crime Branch, Delhi, is as under:

i. On 24.02.2020, a secret information was received stating that a person namely, Masibur would supply `ganja' through Train Parcel Van, to one named, Bali Khan at New Delhi Railway Station. In view of the receipt of the said information, an enquiry was conducted and a trap was laid at New Delhi Railway Station.

ii. While trying to apprehend the said persons, the present applicant managed to escape from the spot, however, the co-accused, Bali Khan was apprehended along with the driver of Eco van.

iii. The recovery effected in the present case from the applicant was that of 180 kg of ganja. It was submitted that the said substance was divided in 9 boxes containing 4 plastic polythenes each. In total, 36 packets of 5 kg each were recovered. On mixing a little bit of the substance from four parcels recovered from each of the boxes, 2 samples of 250 grams each were drawn.

iv. The present applicant was apprehended on 02.03.2020 at the instance of the co-accused. After completion of investigation, chargesheet was filed before the Court of competent jurisdiction. It is submitted that a total of 7 out of 21 witnesses have been examined.

3. Learned counsel appearing on behalf of the applicant seeks bail only on the ground of defect in sampling procedure adopted by the Investigating Officer at the time when the recovery and seizure made in present case. It is further submitted that the procedure for sampling of the recovered contraband, as followed was not in accordance with the mandate of Standing Order No. 1/88, dated 15.03.1988, issued by the Narcotics Control Bureau and Standing Order No. 1/89, dated 13.06.1989, issued by the Government of India, Ministry of Finance (Department of Revenue). It has been contended that the samples drawn are not the true representative samples of the entire contraband recovered from the applicant inasmuch as the samples have been drawn after mixing of the contraband recovered from packets.

4. It is submitted that the alleged recovery effected in the present case from the applicant was that of 180 kg of ganja. The said substance was divided in 9 boxes containing 4 plastic polythenes each. In total, 36 packets of 5 kg each were recovered. On mixing a little bit of the substance from four parcels recovered from each of the boxes, two samples of 250 grams each were drawn.

5. Learned counsel appearing on behalf of the applicant argued that the sampling was done by taking a small amount and mixing the contents of each of the 4 packets found inside each box. The said procedure is violative of settled law and entitles the applicant to bail. The procedure required to be followed was that the samples must have been drawn from each of the 36 packets recovered to ascertain the exact nature of the alleged contraband in these packets. It was further submitted that no field testing kit was used by the Investigating Officer at the spot to confirm that the bags contained Ganja.

6. In support of his contentions, learned counsel for the applicant has relied upon the following judgments/orders:

i. Ahmed Hassan Muhammed v. The Customs, Judgment dated 11.02.2021 in BAIL APPLN. 3076/2020.

ii. E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, passed by the Hon'ble Supreme Court on 11.03.2008 in Criminal Appeal no. 1250 of 2005.

iii. Hira Singh and Another v. Union of India and Another, passed by the Hon'ble Supreme Court in 22.04.2020 in Criminal Appeal No. 722 of 2017.

iv. Samuel Okeke v. State, Judgment dated 28.09.2020 in CRL.A 915/2016.

v. Amani Fidel Chris v. Narcotics Control Bureau, 2020 SCC OnLine Del 2080.

vi. Harun Khan v. Union of India through Int