Non-compliance with mandatory procedures under the NDPS Act and 2022 Rules vitiates the sample drawing process, entitling the accused to bail.

ORDER :

Mridul Kumar Kalita, J.

1. Heard Mr. N.J. Dutta, learned counsel for the petitioner. Also heard Mr. K.K. Parasar, learned Additional Public Prosecutor for the State.

2. This application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Altaf Hussain, who is detained behind the bars since 01.03.2024 (for last 157 days) in connection with Hatigaon P.S. Case No. 39/2024, under Section 20(b)(ii)(C)/29 of the NDPS Act, 1985.

3. The gist of accusation in this case is that on 01.03.2024, one Sri Jeewel Das, SI of Police of Hatigaon Police Station, lodged an FIR before the Officer-in-Charge of Hatigaon Police Station, inter-alia, alleging that an information was received from one Atul Malakar to the effect that his tenant, namely, (1) Md. Haleef Afridi, and (2) Sadique Ul Hoque have been running illegal business of narcotics substance from his rented room situated at Puberun Path, House No. 38, Bye Lane No. 8, Hatigaon. After receiving the said information, the police team from Hatigaon Police Station proceeded to the said place and conducted the search inside the house.

4. During the search operation, 12 numbers of sealed packet wrapped with brown colour cello tape containing suspected ganja, weighing about 23 kg 436 grams, was recovered and three persons namely, Altaf Hussain, Sadique Ul Hoque and Haleef Afridi were apprehended therefrom.

5. The learned counsel for the petitioner has submitted that the petitioner is innocent and not involved in the offence alleged in the FIR against him.

6. The learned counsel for the petitioner has submitted that the petitioner has also filed an additional affidavit, bringing on record the order dated 02.03.2024 passed, in connection with the application under section 52 A of the NDPS Act, 1985, by the learned Judicial Magistrate 1st Class, in Hatigaon P.S. Case No. 39/2024.

7. The learned counsel for the petitioner has submitted that on perusal of the aforesaid order dated 02.03.2024, it appears that the Investigating Officer has not followed the mandate of Section 52 A of the NDPS Act, 1985, as well as also flouted the mandate of Narcotics Drugs and Psychotropic Substance (Seizure, Storage, Sampling and Disposal) Rules, 2022(hereinafter referred to as "2022 Rules").

8. The learned counsel for the petitioner has submitted that on perusal of the order dated 02.03.2024, passed by the learned Judicial Magistrate 1st Class, in Hatigaon P.S. Case No. 39/2024, it is apparent that the Investigating Officer had produced the seized ganja in 12 numbers of sealed packets wrapped with brown colour cello tape weighing about 23.436 kg. The sealed packets were marked as A1 to A12. On weighing the sealed packets, it was found that (1) the weight of A1 was 1.950 kg, (2) the weight of A2 was 2.000 kg, (3) the weight of A3 was found to be 1.960 kg, (4) the weight of A4 was found to be 1.927 kg, (5)the weight of A5 was found to be 1.937 kg, (6) the weight of A6 was found to be 1.969 kg, (7) the weight of A7 was found to be 2.004 kg, (8) the weight of A8 was found to be 1.988 kg, (9) the weight of A9 was found to be 1.971 kg, (10)the weight of A10 was found to be 1.972 kg, (11) the weight of A11 was found to be 1.892 kg, and (12) the weight of A12 was found to be 1.948 kg.

9. The learned counsel for the petitioner has submitted that on perusal of the aforesaid order, it appears that the seal of the seized substance was broken in presence of the Magistrate and the seized substance was taken out from sealed packets in the presence of Magistrate from all 12 packets and mixed together on a plain white sheet to form a homogeneous mixture. Thereafter, three samples of seized contraband weighing about 25 grams each were taken out from the said homogenous mixture and packed in polythene packets, which were marked as S1, S2 and S3 respectively and thereafter it were sealed in the presence of learned Magistrate.

10. It is also submitted by the learned counsel for the petitioner th