IMPORTANT POINT
The court ruled that procedural violations in the seizure of narcotics, specifically not following mandatory sampling protocols, can lead to the dilution of bail conditions under the NDPS Act.

ORDER :

(C.S. Dias, J.)

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.273/2023 of the Kottarakkara Police Station, Kollam, which is registered against the accused (five in number) for allegedly committing the offences punishable under Sections 22(c) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985(in short, ‘NDPS Act’). The petitioner was arrested on 29.01.2023.

2. The essence of the prosecution case is that: on 29.01.2023, the first accused was found in conscious possession of 106 grams of MDMA at the Kottarakkara private bus stand. The first accused was arrested on the spot with the contraband article. During his interrogation, he confessed that the accused Nos.2 to 5 had provided financial assistance to him to purchase the contraband, on the assurance that he would give them profit. Thus, the accused Nos.1 to 5 have committed the above offences.

3. Heard: Sri.Rahul P, the learned counsel for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor.

4. The learned counsel for the petitioner submits that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate the petitioner's involvement in the crime. The Detecting Officer has deliberately implicated the petitioner as an accused in the case. The petitioner has been in judicial custody since 29.01.2023, the investigation case is complete, and the final report has been laid. On going through Annexure-A1 seizure mahazar, it is apparent that the Detecting Officer has violated Section 52A of the NDPS Act and Rules 3, 5, 8, 9 & 10 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling, and Disposal) Rules, 2022 (in short, ‘Rules). According to the prosecution case, the contraband was concealed in three packets weighing 93 grams, 13 grams, and 11 grams, respectively, i.e., a total of 117 grams. Indisputably, the Detecting Officer had cut open three covers at the scene of occurrence and transferred the contraband into a single cover which was in his possession, and weighed it and found that the contraband was 106 grams. The above procedure carried out by the Detecting Officer is in violation of the above mentioned provisions and the law laid down by this Court in Vaisakh v. State of Kerala [2024(2) KHC 446]. Moreover, as per the chemical analysis report submitted by the State Forensic Science Laboratory, Thiruvananthapuram, dated 30.05.2023 only two representative samples were sent for chemical analysis. This again is in violation of the NDPS Act and Rules. Moreover, now the contraband has turned out to be ‘methamphetamine’. It was imperative on the part of the Detecting Officer to have drawn representative samples from each of the packets, that too in the presence of the jurisdictional Magistrate and then, sent the representative samples from each packet for chemical analysis. The entire seizure and drawing of samples are illegal, vitiating the prosecution case. Therefore, the petitioner is entitled to be released on bail.

5. The learned Public Prosecutor opposed the application. He submitted that a commercial quantity of contraband was seized from the conscious possession of the petitioner. Therefore, the rigour under Section 37 of the NDPS Act applies to the facts of the case. Unless the petitioner satisfies the twin conditions under Section 37 of the NDPS Act, he is not entitled to be released on bail. He placed reliance on the decisions of the Honourable Supreme Court in State of Punjab v. Balbir Singh [(1994) 3 SCC 299], Khet Singh v.Union of India [(2002) 4 SCC 380], Union of India v. Bal Mukund and Others [ (2009) 12 SCC 161] and the decision of this Court in Surendran v. State of Kerala [2022 (6) KHC 262], to canvass the position that even if there is a violation of the statutory provisions pertaining to the drawing of samples, the question can only be decided after trial. There are incriminat