Mr. U. K. Uniyal, learned Senior Ad vocate with Mr. Sandeep Kothari, Ad vocate for the petitioner.

2. Mr. Nandan Arya, learned Assist ant Government Advocate for the re spondent-State

3. Heard the learned counsel for the parties.

4. A very short but interesting ques tion of law is involved for consideration, adjudication and determination in this bail application.

5. On 24th October, 2007, three persons were apprehended on the ba sis of information received that con traband was being carried by them. One of them was petitioner Baidev Singh from whose possession, as per the allegations in the First Information Report, 400 gms. of smack was recov ered. It is undisputed case of the par ties that 400 gms. of smack is a com mercial quantity. Any amount which is below 250 gms. is non-commercial quantity. The prosecution case is that out of recovered 400 gms. of the sub stance, 20 gms. (net wet) was sent for chemical examination to the Forensic Science Laboratory, Dehradun. As per the report of the chemical examina tion, the sample received in the Labo ratory gave a positive test for Diacetyl Morphine. In laymans language, the said sample gave a positive test for smack in chemical and chromato-graphic analysis. In the Report sent by the Laboratory, the description of the sample read thus :

Parcel No. : One packet containing suspected material wrapped in clothes.

Seal & Impression : One cloth packet sealed with impression.

Description : A white polythene packet containing suspected material. Gross weight-35. 6 (Approx) with packing. New weight of suspected material 12. 1 gms. (Approx) marked as exhibit 1.

6. According to learned counsel ap pearing for the petitioner, the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (1985 Act for short) were not followed in the case in sofar as the weighting of the recovered substance as well as the drawing of the representative sample are concerned.

7. On a question of fact, it is ad mitted case of the respondent-State be fore this Court in various affidavits filed as well as during the course of argu ments that neither the recovered sub stance, claiming to be 400 gms. was weighed, either at the time of recovery or at any time thereafter, nor the repre sentative sample before being sent to the Laboratory was ever weighed.

8. Under Section 52 of 1985 Act, after every article is seized under sub section (2) of Section 41 or under Sec tions 42, 43 and 44, it shall be forwarded without unnecessary delay to the Officer-in-charge of the nearest police sta tion or the Officer empowered under Section 53 of 1985 Act. Section 52 for ready reference is reproduced hereun-der, which reads thus :

"52. Disposal of persons ar rested and articles seized.- (1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest.

(2) Every person arrested and arti cle seized under warrant issued un der sub-section (1) of section 41 shall be forward without unneces sary delay to the Magistrate by whom the warrant was issued.

(3) Every person arrested and arti cle seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forward without unnecessary delay to -

(a) the officer-in-charge of the near est police station, or

(b) the officer empowered under sec tion 53.

(4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub- section (3) shall, with all convenient dis patch, take such measures as may be necessary for the disposal accord ing to law of such person or article. "

9. Whether any narcotic drug or psychotropic substance has been seized and forwarded to an officer-in- charge of the nearest police station, or to the of ficer empowered under Section 53 of 1985 Act, the concerned officer is un der a mandatory obligation to prepare an inventory of the seized narcotic drug or psychotropic substance. The inventory so prepared shall, amongst other

Click Here to Read the rest of this document