IMPORTANT POINT
A representative sample is essential for establishing possession of narcotic substances under the Narcotic Drugs and Psychotropic Substances Act, and failure to provide such a sample can lead to the granting of bail.

JUDGMENT :

Ravindra Maithani, J.

Applicant is in judicial custody in connection with Special Sessions Trial No. 28 of 2023, in FIR No. 28 of 2020, under Section 8, 20 & 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”), Police Station Lamgara, District Almora. He has sought his release on bail.

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

3. This is second bail application of the applicant. The first bail application was dismissed as withdrawn on 26.04.2023.

4. According to the FIR, on 21.10.2023, 1.830 Kg. charas was allegedly recovered from the applicant Shivraj Singh.

5. Learned counsel for the applicant would submit that alleged charas was in the strips form out of which only 100 gram sample was allegedly taken. But, it is not clear as to whether the sample was taken from each strip or it was taken randomly. It is argued that the sample cannot be said to be representative sample 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) 3 SCC 145.

6. 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.”

7. Learned State counsel would submit that the sample was taken from each of the strips. It was randomly taken.

8. It is a ground in the bail applicant that mandatory provisions of the Act has not been followed. Four witnesses have already been examined. There is no independent public witness. The applicant has been falsely implicated.

9. In view of the law, as laid down in the case of Gaunter Edwin Kircher (supra), can it be said that the sample of 100 gram is representative sample of the charas, which was allegedly recovered from the applicant. This and many more questions would find answer during trial.

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

11. The bail application is allowed.

12. 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.