The court determined that procedural non-compliance in the sampling of narcotics does not automatically warrant bail, especially given the serious nature of the charges and the risk of absconding.

JUDGMENT

Talwant Singh, J. The petitioner has moved this application for grant of bail. It has been mentioned that the petitioner was arrested in case FIR No. 109/2015 under Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') and Section 14 of the Foreigners Act, registered at PS Crime Branch, Delhi on 25.07.2015 and since then the petitioner is in jail.

1.1. The case of the prosecution is that a tip was received that petitioner alongwith another accused Anthony Umeh will come near government school between 10:00 PM to 10:30 PM on 23.07.2015. A raiding team was formed and when they reached at the spot they found two Africans, out of which one person was having a cardboard box in his left armpit and another was with him. The person with cardboard was identified as Anthony and when he handed over the cardboard box to the present petitioner, who took it in his left armpit, he was apprehended and from the cardboard box 15 packets were found, out of which police checked only 5 packets and found Heroin in them. After mixing the mixture of all the packets police put the contents of all the 15 packets in one polythene and total weight was 800 grams, out of which samples were drawn of 5 grams each and the same were sent to FSL for testing.

1.2. As per the petitioner, he has been falsely implicated in the case; his bail application was dismissed by the Trial Court on 06.07.2021. Hence, the present bail application has been moved on the ground that the petitioner is a young man and has been falsely implicated; the manner of drawing the sample was not as per law as the investigating agency had not taken samples from all the packets and had taken out 5 packets out of the 15 packets for sampling purpose and assumed that all the remaining packets were having the same substance; no person from any nearby house was joined as witness; cardboard box in question was with the other co-accused and the police had seen the same, the petitioner is not a previous convict; petitioner is having his family in Delhi; the mandatory provisions regarding the manner in which notice under Section 50 NDPS Act was to be issued was not followed and the petitioner undertakes to abide by such terms and conditions as may be imposed by granting bail and the trial will take some time to reach its logical conclusion.

2. Notice was issued. Status report has been filed. The facts mentioned above the manner in which applicant was apprehended have been reiterated in the pending paragraphs of the status report. It has been submitted that during investigation the present petitioner and co-accused did not cooperate and did not give information about their passport and Visa, so Section 14 of the Foreigners Act was applied.

2.1. No credible information was supplied by the petitioner and his co-accused regarding the source of the contraband. After investigation charge-sheet has been filed in this case. The trial is at its fag end of prosecution evidence as out of 14 witnesses, 13 have already been examined. The regular bail application of the co-accused Anthony Umeh, in which similar pleas were raised, was dismissed by the coordinate Bench of this Court on 06.07.2021. The two interim bail applications moved by the present petitioner were also dismissed by the coordinate Bench of this Court on 31.08.2021 and 12.01.2022 respectively.

2.2. The bail application has been strongly opposed on the ground of commercial quantity of Heroin in which punishment may extend upto 20 years and the bar of Section 37 NDPS Act would also apply; moreover, the petitioner is a Nigerian national having no verified passport details and there is every likelihood of his