Minor discrepancies in sample weight do not warrant bail if no tampering is proven; absence of independent witnesses is a relevant factor but not solely determinative.

JUDGMENT :

VIKAS MAHAJAN, J.

1. The present petition has been filed under Section 483 of BNSS, 2023 seeking regular bail in connection with FIR No. 70/2024 under Section 21/29 NDPS Act registered at PS Crime Branch.

2. The case of the prosecution is that on 01.04.2024 secret informer provided information to SI Rajender Dhaka that two persons namely Mohd. Kasim (petitioner) and his brother Nazim, who are residents of Bareilly, Uttar Pradesh are involved in smuggling of narcotics substances/smack (i.e. heroin) will be coming near Shamshan Ghat, Ghazipur, Delhi on the intervening night of 01/02.04.2024 at around 01:45 A.M. to sell and deliver a huge consignment of heroin (smack). If a raid is conducted they could be arrested with huge quantity of contraband.

3. On the basis of the aforesaid secret information a raiding party was constituted and the petitioner, as well as, his brother Nazim were apprehended. On bodily search of the apprehended persons, nothing was recovered from Nazim. However, 600 gms. of heroin was recovered from the bagpack of the petitioner herein. Accordingly, both the petitioner, as well as, co-accused Nazim were arrested.

4. The learned counsel for the petitioner submits that there is discrepancy in the weight of the sample drawn before the learned Metropolitan Magistrate which are shown to be of 5 gms. each whereas FSL report shows the weight of one sample as 4.3 gms while that of other sample as 4.4 gms. He submits that the discrepancy in the weight of contraband shows that the seal of the samples were tampered with.

5. He further submits that during the seizure proceedings neither any independent public witness was joined nor any videography or photography was conducted. In support of his contention, he places reliance on the decision of a coordinate bench of this Court in Bantu vs. State Govt of NCT of Delhi, 2024 SCC OnLine Del 4671.

6. He further contends that the petitioner does not have any criminal record and he has been incarcerated for a period of approximately 10 months. He further contends that the jail conduct of the petitioner is satisfactory.

7. Per contra, the learned APP has argued on the lines of the status report. He submits that the recovery from the petitioner is of commercial quantity. Therefore, the rigors of Section 37 of NDPS are attracted.

8. He submits that at the time of the offence, the Code of Criminal Procedure was applicable and the same does not provide for photography or videography.

9. He further contends that the law is well settled that conviction can be based even on the testimonies of the official witnesses. He, therefore, urges the Court that the petitioner’s bail application be rejected.

10. I have heard the learned counsel for the petitioner, as well as, learned APP for the State and have perused the record.

11. Insofar as the first contention of the petitioner as regards the discrepancy in the weight of the sample is concerned, to be noted that the variation is miniscule which could be for the reason of moisture being present at the time of sampling. Further, it is not the case of the petitioner that the FSL report indicates that the samples were received by the FSL in tampered condition nor any material has been pointed out which suggests the tampering of sample. Thus, the benefit of minor deficiency in weight of the sample will not enure to the benefit of the petitioner while considering his bail plea.

12. In this regard, reference may be to the decision of this Court in Yunus Khan v State (NCT of Delhi), 2024 SCC OnLine Del 3893 wherein it was observed as under that:

“33. ... In that case, the quantity of the sample seemed to be under the significant cloud as the weight of the sample was found to be deficient by 0.92 grams, whereas, in the present case, the sample has been found to be deficient by 0.30 grams. This minor discrepancy could even be attributed to the presence of moisture content in the contraband when the sample was taken, however, that is an aspect which will