Point of Law: All drugs shall be classified, carefully, weighed and sampled on spot of seizure.

ORDER :

1. Lawyers are abstaining from appearing before the court. The instant bail application has been filed by the petitioner Ganpat S/o Gopi Banjara under Section 439 Cr.P.C against the order impugned passed by learned court below in connection with FIR No. 91/2019, registered at Police Station Parsoli, District Chittorgarh, for the offences under Sections 8/15 of NDPS Act.

2. Briefly stated, the facts of the instant case are that a car driven by the accused-petitioner; which was intercepted by the police at the time of ‘nakabandi’ on Highway Road, Bichhor on 11.07.2019 at about 12:30 P.M. Upon suspicion, the police officers searched the vehicle and during search, total seven bags of poppy husk were found in the car containing a total of 191 kilograms of Poppy husk which was seized by the police and the seizing officer took 500 grams of poppy husk from each bag for sampling respectively; all the samples of 500 grams each collected from separate bags were mixed together in a single bag and thereafter, two samples of 500 grams each were taken from the aforesaid admixture of 3.5 kilograms.

3. The wife of the petitioner is present in person before this court and she 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 seven plastic bags were drawn for testing, however, those samples were mixed together and thereafter, two samples of 500 grams each were sent for 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 191 kilograms.

4. Per contra, learned Public Prosecutor opposes the bail applications on the ground that the recovered contraband weighed 191 kilograms in total and that is way above the commercial quantity demarcated for poppy husk.

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 seven plastic 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. 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.

7. This court has passed a detailed order in this context in S.B. Criminal Misc. 3rd Bail Application No. 1162/2022; 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. The relevant part of the said order is as under:

“4. Heard learned counsel for the petitioner and learned public prosecutor. Perused the material available on record. The argument that collection of samples was not proper and in accordance with the procedure of sampling as per Standing Order No. 1/1989 seems to be worth considering. Clause 2.1 to 2.8 of the Violation Order/Instruction No. 1 of 1989 dated 13.6.1989 issued by the Government of India under Section 52 A of N.D.P.S. Act are of relevance to the present set of facts and are as follows:

2.1 All drugs shall be class