Point of Law: Knowledge is the crux of Section 25 of the NDPS Act.

ORDER :

1. The instant bail application has been filed by the petitioner Gopal Lal Jat S/o Balu Ram under Section 439 Cr.P.C against the order impugned passed by learned court below in connection with FIR No.29/2019, registered at Police Station Shivpura, District Pali, for the offences under Sections 8/15 and 25 of NDPS Act and Section 472 of IPC.

2. Briefly stated, the facts of the instant case are that a car was intercepted by the police at the time of ‘nakabandi’ on ‘marwar chauraha jadan’ on 02.04.2019 at about 07:36 P.M. The vehicle was found lying in an abandoned condition as the suspect got flustered after spotting the police at the ‘nakabandi’. Upon suspicion, the police officers searched the vehicle and during search, total 10 bags of poppy husk were found in the car containing a total of 148.400 kilograms of Poppy husk which was seized by the police and the seizing officer took one kilogram of poppy husk from each bag for sampling respectively; all the samples of one kilogram each collected from separate bags were mixed together in a single bag and thereafter, two samples of one kilogram each were taken from the aforesaid admixture.

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 ten plastic bags were drawn for testing, however, those samples were mixed together and thereafter, two samples of one kilogram 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 148.400 kilograms. Neither the petitioner was present on the spot nor any recovery has been affected from him. The case of prosecution that the vehicle was intercepted in an abandoned condition, nobody was present there. There is not an iota of evidence to show or suggest the complicity of the petitioner in commission of the crime. 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 opposes the bail applications on the ground that the recovered contraband weighed 148.400 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 ten 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 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 learned public prosecutor.