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2020 Supreme(All) 797
IN THE HIGH COURT OF ALLAHABAD
GAUTAM CHOWDHARY, J.
Phool Chand Ali – Appellant
Versus
Union of India (Narcotics Control Bureau, Lucknow) – Respondent
Criminal Misc. Bail Application No. 19743 of 2020
Decided On : 12-10-2020
Advocate Appeared:
For the Appellants : Rajesh Pratap Singh, Om Prakash Singh.
For the Respondent: Ashish Pandey.
Point of Law: court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.
Headnote:
Constitution of India, 1950 – Article 21 – Code of Criminal Procedure, 1973 – Section 82 – Indian Penal Code, 1860 – Section 229-A – N.D.P.S. Act – Sections 37, 8, 20, 27, 29 – Illicit Drugs – Bail – Allegation against the applicant in the complaint filed by opposite party is that Circle Officer, STF, Lucknow informed the Intelligence Officer that two persons namely Shalam Ali and Phool Chand Ali were carrying 150 kg Ganja in one Bolero Camper coming from Assam through Gorakhpur to Mau. – This information was conveyed to N.C.B. Lucknow who after constituting a team arrested the said applicants from Mau. – Applicant disclosed his identity as Phool Chand Ali and Shalam Ali. – Ganja was found concealed in the secret cavity between middle seat and back seat of the car. – After opening of cavity made in the car 14 packets wrapped with white polythene and 5 packets from middle of the seat was found. – After weighing all the material total quantity was found to be 149 kg. – Thereafter small quantity of ganja was drawn from each packet by way of scratching and after mixing them well, two representative samples, each weighing about 24 gms, were drawn and were sealed. –
Finding of the Court:
Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. – It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. – But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. – Evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh vs. State of U.P. and Another, (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. –
Result: Bail Application Allowed.
JUDGMENT :
GAUTAM CHOWDHARY, J.
1. Heard Sri. Om Prakash Singh, learned Senior Counsel for the applicant and Sri. S.R. Singh, learned counsel holding brief of Shri Ashish Pandey, learned counsel for opposite party.
2. The allegation against the applicant in the complaint filed by opposite party is that on 25.08.2019 Circle Officer, STF, Lucknow informed the Intelligence Officer that two persons namely Shalam Ali and Phool Chand Ali were carrying 150 kg Ganja in one Bolero Camper No. AS16B8229 coming from Assam through Gorakhpur to Mau. This information was conveyed to N.C.B. Lucknow who after constituting a team arrested the said applicants on 25.08.2019 from Mau. Applicant disclosed his identity as Phool Chand Ali and Shalam Ali. Ganja was found concealed in the secret cavity between middle seat and back seat of the car. After opening of cavity made in the car 14 packets wrapped with white polythene and 5 packets from middle of the seat was found. After weighing all the material total quantity was found to be 149 kg. Thereafter small quantity of ganja was drawn from each packet by way of scratching and after mixing them well, two representative samples, each weighing about 24 gms, were drawn and were sealed.
3. Learned Senior Counsel for the applicant has submitted that the general procedure for sampling provided in Standing Order No. 01 of 1989 dated 13.06.1989 has not been complied by the opposite party. He has relied upon clause 2.1 to 2.8 of the aforesaid standing order quoted herein-below:-
2.1 All drugs shall be classified, carefully, weighed and sampled on the spot of seizure.
2.2 All the packages/containers shall be numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the persons from whose possession the drug is recovered and a mention to this effect should invariably be made in the panchnama drawn on the spot.
2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) were a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.
2.4 In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/ container in case of seizure of more than one package/container.
2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects the packages/container may be carefully bunched in lots of 10 package/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of, 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.
2.6 Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.
2.7 If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container.
2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample the in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which
