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.

2. The instant bail application has been filed by the petitioner Imran S/o Shri Ahateshamdin under Section 439 Cr.P.C. against the order impugned passed by learned court below in connection with FIR No. 10/2020, registered at Police Station Pallu, District Hanumangarh, for the offences under Sections 8/18 and 29 of NDPS Act.

3. Briefly stated, the facts of the instant case are that a car driven by the accused-petitioner; was intercepted by the police at the time of ‘nakabandi’ on Highway Road, Sardarshahar on 21.01.2020 at about 12:05 P.M. Upon suspicion, the police officers searched the vehicle and during search, total two polythene bags of opium were found in the car containing a total of four kilograms of opium which was seized by the police and the seizing officer took two samples of 50 grams each of opium from one bag for sampling but sent only one sample for testing.

4. 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 two polythene bags were not drawn for testing, two samples of 50 grams each were sent for FSL from one polythene bag only. 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 opium and that the quantity of the recovered contraband is four kilograms. As per the FSL report, only one sample of 32.79 grams was sent for testing by the seizing officer.

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

6. Heard. Perused the material available on record. The prosecution witness PW-1 Mahendra Kumar who made seizure of contraband has in an unambiguous manner; accepted in the evidence that several small polythene bags were contained in two big polythene bags and he took one sample from the seized material. It is observed that no separate sample from each bag was taken, therefore, the possibility cannot be ruled out that one of the polythene bags may be filled with contraband and rest may be filled with neutral substances.

7. 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 polythene 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 two polythene bags for investigation.

8. It is worth considering that out of the two samples collected for testing, only one sample was sent to FSL and even the sample that was sent did not weigh 50 grams as stated by the seizing officer when he was examined as PW-1 in trial. The discrepancy in the weight of the sample puts doubt on the case of the prosecution. Further it is highly suspicious that how many polythene bags were there and why the sample was taken from one bag only.

9. 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 proce