Point of law: It cannot be ascertained beyond reasonable doubt that the other bags also contained contraband on the basis of presumption.

ORDER :

1. Lawyers are abstaining from appearing before the court.

2. The instant bail application has been filed by the petitioner Vikas S/o Sahiram under Section 439 Cr.P.C. against the order impugned passed by learned court below in connection with FIR No. 77/2022, registered at Police Station Jaitsar, District Sri Ganganagar, for the offences under Sections 8/15, 25 and 29 of NDPS Act.

3. Briefly stated, the facts of the instant case are that a truck bearing Registration No. RJ-19-GC-3237 was intercepted by the police while patrolling on 01.04.2022 at about 07:30 P.M. During search, total five plastic bags of poppy husk were found in the truck; the bags were emptied upon the tarpaulin and weighed together. The total weight of the admixture was 89 kilograms; out of which, two samples of 500 grams each, marked A (chemical sample) and B (control sample),were taken from the seized contraband for investigation and rest of the contraband weighing 88 kilograms was repacked into different packets.

4. The brother of the petitioner is present in person before this court and he 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. The samples from each of the five plastic bags were not drawn 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 89 kilograms.

5. Per contra, learned Public Prosecutor opposes the bail applications on the ground that the recovered contraband weighed 89 kilograms in total and that is way above the commercial quantity demarcated for poppy husk.

6. 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 five plastic bags for investigation.

7. 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. If samples taken from all the bags and then the collected samples are mixed together and then one sample is taken from the admixture, the same sample cannot be a representative of all the other bags and it cannot be ascertained beyond reasonable doubt that the other bags also contained contraband on the basis of presumption.

8. This court has passed a detailed order in this context in S.B. Criminal Misc. 3rd Bail Application No. 1162/2022 titled Ramchandra vs. 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.

9. The five plastic bags were weighed separately and as the samples were wrongly collected, the quantity of the seized contraband can be assumed to be less than commercial quantity and the impediment as stipulated in Section 37 of the NDPS Act will not be applicable in the present case. For instance, if the three plastic bags were allegedly recovered from the principal and only two plastic bags were having contraband substance and rest of the three plastic bags did not have any contraband; though all maybe of same colour, when we mix the substances of all the five plastic bags into one or two; then definitely, the forensic result would as such test in the affirmative for whole of the quantity when in fact, contraband was only contained in two bags. The alleged ceased contraband contained in each single plastic bag weighed well below comm