Point of Law: Minor discrepancy in the weight of the sample sent at the Forensic Laboratory cannot shake the roots of the prosecution case.

JUDGMENT :

KRISHAN PAHAL, J.

1. Since the above two bail applications of the accused-applicants pertain to common recovery, therefore, I am deciding these bail applications by a common judgment.

2. Heard Sri Anuj Dayal, learned counsel for applicants and Sri Akhilesh Kumar Awasthi, learned counsel for the N.C.B. and perused the record.

3. Applicants seek bail in Case Crime No. 03 of 2020, under Sections 8(C)/18/29 of Narcotic of Drug and Psychotropic Substances Act, 1985, Police Station N.C.B. District Lucknow, during the pendency of trial.

Facts in Brief:

4. As per prosecution story, on the secret information received by N.C.B. from a squealer on 20.02.2020, a team was constituted for arresting the accused-persons, namely, Chhotey Lal and Kavinder Kumar, from general bogey of Train No. 12237 Begumpura Express. The N.C.B. team intercepted the said accused-persons from the said general bogey on 20.02.2020 at 16.15 pm. Thereafter, apprehended accused-persons were taken at platform no. 7 and 4 Kg and 3 Kg Opium was recovered respectively from Chhotey Lal and Kavinder Kumar being contained in their bags. The sample of 25 grams was taken from each packet and sealed. The sample of the said contraband was sent for forensic analysis on 23.02.2020 and was received in the Central Revenue Control Laboratory on 24.02.2020 and the report was prepared on 26.02.2020.

Rival Contentions:

5. Learned counsel for the applicants has stated that out of seven samples received, there is a difference of weight in three samples, out of which, sample P2S1 and P6S1 are found to be of 22.2 grams and 21.6 grams respectively. Thus, they are found deficient of the requisite weight by 2.8 grams and 3.4 grams respectively.

6. On this count, learned counsel for the applicants has placed much reliance on the judgment of Supreme Court passed in case of Rajesh Jagdamba Avasthi vs. State of Goa, (2005) 9 SCC 773. Relevant part of the judgment is quoted herein as under:

“14. We do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of charas weighing 180.70 gm. The charas recovered from him was packed and sealed in two envelopes. When the said envelopes were opened in the laboratory by the Junior Scientific Officer, PW-1, he found the quantity to be different. While in one envelope the difference was only minimal, in the other the difference in weight was significant. The High Court itself found that it could not be described as a mere minor discrepancy. Learned counsel rightly submitted before us that the High Court was not justified in upholding the conviction of the appellant on the basis of what was recovered only from envelope A ignoring the quantity of charas found in envelope B. This is because there was only one search and seizure, and whatever was recovered from the appellant was packed in two envelopes. The credibility of the recovery proceeding is considerably eroded if it is found that the quantity actually found by PW-1 was less than the quantity sealed and sent to him. As he rightly emphasised, the question was not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW-1. The prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful.”

7. Learned counsel for the applicants has further stated that as the quantity of each sample for chemical analysis should not be less than 24 grams in the case of Opium. The requisite directions provided in Standing Order 1/89 dated 13.06.1989 have not been followed and the applicants are entitled for bail on this ground only. As in the present case, two samples were found less than the minimum quantity of 24 grams.

8. Learned counsel for the applicants has placed reliance on the judgment of this Court passed in Criminal Appeal No. 1821 of 1998 (Jai Pal and Another vs. State of U.P.) decided on 23.01.2018. Relevant part of