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.

JUDGMENT :

1. Heard Sri Sri Karunakar Srivastava, learned counsel for the applicant, learned AGA for the State and perused the material placed on record.

2. Applicant seeks bail in Case Crime No. 0205 of 2021, under Sections 8/20 of The Narcotic Drugs And Psychotropic Substances Act, 1985, Police Station-Utraula, District Balrampur, during the pendency of trial.

3. As per prosecution story, 1 quintal 3 Kg 290 grams of ganja and 38 packets of cigarette rolling paper from a unnumbered Tata Tiago car along with one CMP, .303 bore, one live cartridge of .303 bore are said to have been recovered from the possession of two co-accused persons, namely, the applicant and Ram Prakash Verma. Rs.340 cash was recovered from the possession of the applicant and Rs.25,000/- cash was recovered from the possession of co-accused Ram Prakash Verma and two accused persons are stated to have run away from the scene of recovery after seeing the raiding party.

4. Learned counsel for the applicant has argued that in all the said contraband was recovered from 19 packets and one polythene amounting to total of 1 quintal 3 Kg and 290 grams and only one sample has been taken from the said contraband. This is a clear violation of Clause 2.4 of the Standing Order No.1 of 1989.

5. Learned counsel for the applicant has further argued that the said sample has been sent for testing after a delay of twenty days, which is also clear violation of the said Standing Order, as it is provided in it that the contraband should be sent for chemical analysis within a period of 72 hours. The said delay has categorically prejudiced the accused and there is every possibility of interpolation and adulteration in the said sample.

6. Learned counsel for the applicant has placed reliance on the case law settled by the Apex Court in case of State of Rajasthan vs. Tara Singh, (2011) 11 SCC 559, in which it has been held as under:-

(2) At the very outset, it must be understood that the provisions of Section 50 would no longer be applicable to a search such as the one made in the present case as the opium had been carried on the head in a gunny bag. A Bench of this Court in State of Himachal Pradesh v. Pawan Kumar, after examining the discrepant views rendered in various judgments of this Court has found that Section 50 of the Act would not apply to any search or seizure where the article was not being carried on the person of the accused. Admittedly, in the present case, the opium was being carried on the head in a bag. Mr. Abhishek Gupta, the learned Counsel for the appellant-State, therefore, appears to be right when he contends that the observations of the High Court that the provisions of Section 50 of the Act would not be applicable was no longer correct in view of the judgment in Pawan Kumar's case. We find, however, that the second aspect on which the High Court has opined calls for no interference. As per the prosecution story the samples had been removed from the Malkhana on the 26th of February, 1998, and should have been received in the laboratory the very next day. The High Court has, accordingly observed that the prosecution had not been able to show as to in whose possession the samples had remained from 26th February, 1998 to 9th March, 1998. The High Court has also disbelieved the evidence of PW-6 and PW-9, the former being the Malkhana incharge and the latter being the Constable, who had taken the samples to the Laboratory to the effect that the samples had been taken out on the 9th of March, 1998 and not on the 26th February, 1998. The Court has also found that in the absence of any reliable evidence with regard to the authenticity of the letter dated 26th February, 1998 it had to be found that the samples had remained in some unknown custody from the 26th February, 1998 to 9th March, 1998. We must emphasise that in a prosecution relating to the Act the question as to how and where the samples had been stored or as to when they had dispatched or received in the laborator