IMPORTANT POINT
The necessity for the prosecution to provide a representative sample in narcotics cases to establish possession beyond reasonable doubt.

JUDGMENT :

(Ravindra Maithani, J.) :

Applicant is in judicial custody in FIR No. 418 of 2023, under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Nehru Colony, District Dehradun. He has sought his release on bail.

2. Heard learned counsel for the parties and perused the record.

3. According to the FIR, on 30.10.2023, 1210 gram charas in a strip from were recovered from the applicant.

4. Learned counsel for the applicant would submit that it is case of recovery of commercial quantity of charas because sample of 100 grams was taken, which was randomly taken, not taken from each of the strips. Therefore, it cannot be said that the sample was the representative sample of the allegedly recovered quantity. It is argued that the applicant is not a previous convict. The applicant has already stated as to who was the owner of the charas. In support of his contention, learned counsel has placed reliance on the principles of law, as laid down by the Hon’ble Supreme Court, in the case of Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panaji, Goa, (1993) 3SCC 145.

5. In the case of Gaunter Edwin Kircher (supra), the Hon’ble Supreme Court observed that “before examining the scope of this provision, we shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms and 5 gms respectively. As already mentioned only one piece was sent for chemical analysis and PW 1, the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms. From this report alone it cannot be presumed or inferred that the substance in the other piece weighing 7 gms also contained Charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not to all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms of Charas were recovered from the accused. In view of the evidence of PW 1 it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms was recovered from the accused.”

6. Learned State counsel would submit that 1210 gram charas was recovered from the applicant, which was in a strips form and the sample of 100 grams was taken randomly.

7. It is the stage of bail. Much of the discussion is not expected of. Arguments are being appreciated with the caveat that any observation made in this order shall have no bearing at any subsequent stage of the trial or in any other proceedings.

8. Can it be said that the sample that was taken, was a representative sample of the entire recovered quantity? Particularly, in view of the fact that as per prosecution also, the allegedly recovered charas was in strips form. These and many more questions would find deliberation during trial.

9. Having considered the entirety of facts, this Court is of the view that the applicant deserves to be enlarged on bail.

10. The bail application is allowed.

11. Let the applicant be released on bail, on his executing a personal bond and furnishing two reliable sureties, each of the like amount, to the satisfaction of the Court concerned.