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IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Bansal, J.
Ginkala Meddilety – Appellant
Versus
State – Respondent
Bail Appln. 1133 of 2022 and Cr.M.A. 9482 of 2023 (additional grounds)
Decided On : 05-09-2023
NDPS Act - Bail Application - Sections 20/25/29 - Standing Order 1/88 - [2.2, 2.4, 36, 27] - The court discussed the mandatory nature of the Standing Order 1/88 in taking samples of narcotic drugs and psychotropic substances, emphasizing that non-compliance may invoke reasonable doubt and prejudice the accused. The court held that the investigating authority's failure to follow the Standing Order in the sampling process caused prejudice to the applicant, leading to the grant of bail.
Fact of the Case:
The applicant sought bail in a case involving the apprehension of a truck carrying 275 kilograms of Ganja by the police. The applicant argued that the investigating agency did not follow the prescribed procedure for taking samples as mandated in the Standing Order 1/88 and that the seizure was not made in his presence. The State contended that the Standing Order is not binding and highlighted the applicant's involvement with the co-accused.
Finding of the Court:
The court found that the investigating authority did not follow the prescribed procedure for taking samples, causing prejudice to the applicant. Considering the applicant's satisfactory conduct in jail and the likelihood of a lengthy trial, the court granted bail to the applicant.
Issues: Non-compliance with the prescribed sampling procedure, the applicant's involvement with the co-accused, and the applicant's custody duration.
Ratio Decidendi: The court's decision was influenced by the non-compliance with the mandatory sampling procedure, which caused prejudice to the applicant, leading to the grant of bail.
Final Decision: The court allowed the application and directed the release of the applicant on bail, subject to specified conditions.
JUDGMENT
Amit Bansal, J. (Oral)
1. By way of the present application, the applicant seeks bail in FIR No.145/2020 dated 24th September, 2020, under Sections 20/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), registered at Police Station Crime Branch, Delhi.
2. On 24th September, 2020, based on secret information received, a truck carrying 275 kilograms of Ganja was apprehended by the police and recovery of the aforesaid Ganja was taken into police possession through a seizure memo. Thereafter, the present FIR was registered with the Crime Branch.
3. Counsel appearing on behalf of the applicant submits that in the present case, the Crime Branch has not adopted the procedure for taking samples as mandated in the Standing Order 1/88 dated 15th March, 1988 (hereinafter `Standing Order'), issued by the Narcotics Control Bureau (NCB), in as much as out of the 55 packets of Ganja seized, the investigating agency has mixed the quantities contained in 5 packets into 1, thereby converting a total of 55 packets into a total of 11 packets. He further submits that the seizure was not made in the presence of the applicant.
4. Reliance in this regard has been placed by the applicant on the judgments passed by the Coordinate Benches of this Court in Laxman Thakur v. State (Govt. of NCT of Delhi), (2022) SCC OnLine Del 4427 and Amina v. State NCT of Delhi, (2023) SCC OnLine Del 3491.
5. Per contra, the learned APP appearing on behalf of the State submits that the aforesaid Standing Order is in the nature of guidelines and is not binding in nature. He has further drawn attention of the Court to the transcript of conversation between the applicant and the co-accused persons namely, Sheikh Sadak Hussain and Shaik Suban, from where it appears that the applicant has been guiding and instructing the said accused persons.
6. I have heard the counsels for the parties.
7. At the outset, the relevant extracts of the Standing Order are set out below:
"2.2 All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witness (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot.
xxx xxx xxx xxx
2.4 In the case of Seizure of a single package/container, one sample (in duplicate) shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container."
8. The Supreme Court in Union of India v. Bal Mukund & Ors., (2009) 12 SCC 161 has held that the requirements of the Standing Order 1/88 are mandatory in law. Relevant paragraph is set out below:
"36. There is another aspect in the matter which cannot be lost sight of. Standing Instruction 1/88, which has been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW 7 had taken samples of 25 gm each from all five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law."
9. The Coordinate Bench in Laxman Thakur (supra) has held that in terms of the Standing Order 1/88, transferring of content of all packets into one and then drawing of samples from the mixture is not permitted.
10. The Coordinate Bench in Amina (supra) after analyzing various judgments of the Supreme Court and this Court has held as under:
"27. From a careful assessment of the decisions cited above and the perusal of the Standing Orders, this Court is of the considered opinion that the Standing Orders have to serve a certain purpose having been issued by the Narcotics Control Bureau, Government of India and cannot be rendered optional for compliance to the investigating agencies. The procedures prescribed in
Non-compliance with mandatory sampling procedures, as prescribed in the Standing Order, may invoke reasonable doubt and prejudice the accused, influencing the grant of bail.
Standing Orders cannot be flouted and in the absence of substantial compliance of the Standing Orders, adverse inference has to be drawn against the prosecution.
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.
court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty.
The main legal point established in the judgment is that the defective sampling procedure at the time of recovery and seizure of contraband can be challenged during the trial before the Special Judge....
The importance of compliance with the Standing Orders for sampling procedure under the NDPS Act and the need to consider reasonable grounds for granting bail in cases involving the liberty of the per....
The main legal point established in the judgment is the need for substantial compliance with the guidelines and the mandatory nature of statutory instructions, as well as the criticism of the failure....
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