The court held that the procedure adopted with respect to contraband in the present case is not defective in nature at this stage and that the applicant will get ample opportunity to show that the said recovery was defective and sample drawn were not the true representatives of the sample recovered, during the course of trial before learned Special Judge.

JUDGMENT

Amit Sharma, J.

1. The present application under Section 439 of CrPC seeks grant of regular bail in NCB File no. VIII/30/DZU/2018 under Sections 20/23 of NDPS Act, registered at PS NCB.

2. Briefly stated, the case of the prosecution is as below:

i. Upon receipt of information on 01.10.2018 that one parcel bearing Airway Bill No. 7578646180 booked for Hong Kong, and lying at the DHL Express Pvt Ltd is suspected of containing narcotic drugs, the said parcel was searched. Upon opening of the same, 10 copper flower pots were found with the total weight of three parcels being 63 kgs, i.e., 25+25+13 kgs. On further scrutiny, the copper flower pots were found to contain 40 (16 +16+ 8) dark brown coloured semi solid rectangle shaped pieces, which were identical in nature, color and smell and each piece on testing gave positive result for charas.

ii. The aforesaid contraband was seized in the presence of independent witnesses vide Panchnama dated 01.10.2018. It is pertinent to mention that the total quantity of contraband substance weighted 19.90 kgs of charas. It is pertinent to state that for the purpose of sampling, it was alleged that since all the recovered 40 pieces were of the same type, from all, a small quantity was collected and a mixture was prepared, out of which two samples of 25 grams each was kept separately in zip lock pouches and marked as A1 & A2 accordingly.

iii. The aforesaid parcels and copy of the invoice mentioned the address of `GMS World Ltd. at Hongkong, Mobile No. +85291541077' as the receiver and the particulars of the sender of the said package mentioned details of one named, Gauri Shankar Jaiswal i.e., the present applicant, S/o Bindalal Prasad Jaiswal, Village-Mashaha, Dhaka, East Champaran, Pin-845418 (Bihar) Mobile No. +917643871911. A photostat copy of Aadhar card of the present applicant duly signed by him was enclosed therewith.

iv. Further, during the course of investigation, summons under section 67 NDPS Act were issued to the present applicant, who appeared and tendered his self-written voluntary statement under section 67 of the NDPS Act at New Delhi on 04-10-2018 and further tendered voluntary statement on 05-10-2018, wherein he admitted that he had booked the said parcel containing contraband. The said applicant also disclosed that he was a resident of Nepal and had prepared an Aadhar Card containing address of Bihar, from Delhi. He revealed that his Nepali friend Bir Lama had given him the said contraband and he booked the same by concealing them in copper vessels.

v. On the basis of sufficient material on record and for committing an offence under NDPS Act, the petitioner was arrested on 0510- 2018.

vi. Subsequently, on 01.04.2019, a complaint under Section 20(b)(ii)(c) & 23 of NDPS Act against the present applicant and thereafter charges were framed under the said matter on 05.09.2019.

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. Learned counsel for the applicant submitted that the procedure followed by the raiding team at the recovery of the alleged contraband was contrary to the procedure established by the Hon'ble High Court in the judgment Basant Rai v. State, 2012 (13) DRJ 471. He further urged that the procedure adopted by the prosecution while collecting and subsequently mixing the material was against the procedure established by law and against the dicta laid down by the Hon'ble High Court. Learned counsel for the applicant placed his reliance on Standing Order 1/88 and 1/89 to substantiate his aforesaid arguments.

4. Learned counsel for the applicant submitted that the investigating agency had failed to file any such document so as to prove that testing of the alleged contraband was through a field testing kit, which indicated that no proper testing had been conducted by the investigating agency of the sa