IMPORTANT POINT
The prosecution must prove that the sample taken from recovered narcotics is representative of the total quantity to establish possession beyond reasonable doubt.

JUDGMENT :

RAVINDRA MAITHANI, J.

1. Applicants are in judicial custody in FIR/Case Crime No. 271 of 2023, under Sections 8/20/27A/29/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”), Police Station Raiwala, District Dehradun. They have sought their release on bail.

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

3. This is the second bail application of the applicants. The first bail application, being BA1 No. 489 of 2024, was dismissed as withdrawn on 22.04.2024.

4. According to the FIR, on 19.12.2023, police intercepted a vehicle and recovered ganja in commercial quantity, which was kept in two bags. In one bag, 9 kg ganja in three packets of 5 kg, 2 kg and 3 kg each were kept and in another bag, 49 kg ganja was kept in 10 packets.

5. Learned counsel for the applicants would submit that it is a false case. According to the FIR, at the time of recovery, recovery memo was prepared in laptop, which was sent to the police station for procuring data, but there is no material to suggest that ever print out was taken at the police station, which was signed at the spot by the witnesses. It is also submit that out of total 13 packets, which were in two bags, sample was taken from two packets, 100 grams each.

6. It is argued that the sample that was taken cannot be said to be the representative sample of alleged recovered quantity. It is also argued that the applicants are not previous convict. Learned counsel for the applicants would refer to the principles of law, as laid by the Hon’ble Supreme Court in the case of Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panaji, Goa, (1993) 3 SCC 145.

7. 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.”

8. Learned State Counsel admits that the samples were taken from two packets separately from two bags. It was not taken from each of the 13 packets. She would also submit that there is no material to substantiate that the recovery memo was prepared in the laptop and print out was taken from the police station.

9. As per prosecution, ganja was in 13 packets of different quantity. None of the packets individually contained commercial quantity of ganja. These packets were in two bags. Samples were taken from two bags, but from two packets only. 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 the prosecution also, the allegedly recovered ganja was in 13 packets. These and many more questions would find deliberation during trial.

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

11. The bail application is allowed.

12. Let the applicants be released on bail, on their executing a personal bond and furnishing two reliable sureties, each of the like amount, by each one of them, to the satisfaction of the cou