Point of Law: Doctrine of beyond reasonable doubt is applicable in criminal matters.

ORDER :

1. The instant bail application has been filed by the petitioner Prabhu S/o Tulsi Ram Gurjar under Section 439 Cr.P.C against the order impugned passed by learned court below in connection with FIR No.02/2009, registered at Police Station CBN Neemach, for the offences under Sections 8/15 and 8/29 of NDPS Act.

2. Briefly stated, the facts of the instant case are that a car was intercepted by the police at the time of ‘nakabandi’ on ‘palana tiraha’ on 25.03.2009 at about 05:00 A.M. Upon suspicion, the police officers searched the vehicle and during search, total 14 bags were found in the car containing a total of 372.300 kilograms of Poppy husk which was seized by the police and the seizing officer took two samples of 500 grams each of poppy husk from all of the 14 bags for investigation.

3. Learned counsel for the petitioner submits that a false case has been foisted against the petitioner and the mandatory provisions of NDPS Act have not been complied with, thus, the complete recovery, as alleged, has been vitiated on this count alone. Samples from each of the fourteen bags were not drawn for testing and two samples of 500 grams each were taken from the admixture from all the recovered contraband and were sent to FSL. Since samples from each of the bags were not separately sent for testing, it cannot be said with utmost certainty that each of the bags contained contraband poppy husk and that the quantity of the recovered contraband is 372.300 kilograms. It is the admitted case of the prosecution that neither the petitioner was found present at the crime scene nor any incriminating material or contraband was recovered from his possession. He submits that for booking an accused for the accusation of the offence committed under Section 29 of the NDPS Act, there must be some corroborative evidence. He have been made accused on the strength of confessional statement made by the co-accused during police custody which is otherwise not admissible in evidence by virtue of Sections 25 and 26 of Indian Evidence Act. The said disclosure statement does not come within the ambit of Section 27 of Indian Evidence Act. He has nothing to do with the alleged offences and no useful purpose would be served by keeping him behind the bars.

4. Per contra, learned Public Prosecutor opposed the bail application on the ground that contraband poppy husk weighing 372.300 Kilograms were recovered at the instance of co-accused persons which was sold to him by the petitioner. The recovered contraband poppy husk is way above the demarcated commercial quantity.

5. Heard. Perused the material available on record. Upon consideration of the submissions made on behalf of the petitioner and the law applicable in the matter, this court is of the opinion that it cannot be ascertained beyond any measure of doubt that the recovered contraband was above the commercial quantity as the samples of contraband were not collected individually from the fourteen bags for investigation.

6. No presumption is available that the other bags also contained contraband. Since the doctrine of beyond reasonable doubt is applicable in criminal matters, therefore, even the initial duty lies upon the prosecution to show that the petitioner was having contraband in all the bags. This court is of the opinion that it cannot be ascertained beyond any measure of doubt that the recovered contraband was above the commercial quantity as the samples of contraband were not collected individually from the fourteen bags for investigation.

7. This court has passed a detailed order in this context in S.B. Criminal Misc. 3rd Bail Application No. 1162/2022; Ramchandra v. State of Rajasthan, wherein the rules pertaining to sample collection contained in Standing Order No. 1/1989 dated 13.06.1989 issued by Government of India under Section 52A of NDPS Act have been enumerated inter alia other aspects. The relevant part of the said order is as under:-

“4. Heard learned counsel for the petitioner and le