ORDER

1. This is the first bail application u/s.439 Cr.P.C filed by the applicant for grant of bail.

2. Applicant has been arrested on 12.6.2021 by Police Station, Noorabad, District Morena (MP), in connection with Crime No.130/2021 for the offence punishable under section 8/20 of the NDPS Act.

3. Ajay Vaishandar of Police Station Noorabad on 12.6.2021 at 10.34 AM got secret information that three persons in Maruti Ritz Car No. CG04 HD 5153 having cannabis in their possession are coming from Gwalior to Morena. He entered the information in the daily diary. After doing formalities as per the procedure of the NDPS Act he along with force reached the spot and waited near J.K.Tyre factory. One car was coming On seeing the police party, Driver of the Car tried to ran away, but any how they could be caught hold. Driver narrated his name as Nand Kishore, resident of Mathura, his neighbour narrated his name as Lakhanveer and the person sitting behind the seat narrated his name as Navneet Jat. All are residents of Mathura. During running away Lakhanveer got injuries. After giving them notice the car was checked. From the car 12 packets of cannabis (ganja) were found. From all 12 packets cannabis were took out and it was found as 70 kg. 100-100 gms of ganja were took out for sampling. From the joint possession of accused Nand Kishore, Lakhanveer and Navneet Jat aforesaid cannabis were seized and they were arrested and the car was seized. Thereafter, a crime under the aforesaid offence was registered. After investigation, charge sheet has been filed.

4. From the side of applicant-accused it has been submitted that investigating agency committed gross negligence during investigation because before taking sample of each packets, they mixed the contraband kept in 12 packets. Infact they had to take sample from each packets. In support of their contention learned counsel for applicant-accused has relied on judgment passed by High Court of Judicature For Rajasthan At Jodhpur in CrLMB 5643/2019 (Laal Singh v. State of Rajasthan) on 16.5.2019 in which the same facts were taken into consideration. In that case SHO Police Station Arnod District Pratapgarh seized 1264 kg and 800 gm poppy husk contained in 57 bags. Seizure Officer first mixed all the poppy husk contained in 57 bags, on a tarpaulin and thereafter took two samples of 1 kg from bag No.1.

5. The apex Court in Netram v. State of Rajasthan reported in 2014 (1) CrLR (Raj.) 163 has held that if the samples from each bag containing poppy husk/poppy straw have not been collected and test by U.N.Kit has not been conducted on each bag and if the Seizure Officer has taken out some quantity of narcotic drug from each bag and after mixing the same has taken out some portion for sample, then, the same is not in conformity with the Standing Instruction No.1/88 issued by the Narcotics Control Bureau, New Delhi, particularly, Instruction No.1.7 and, as such, it cannot be said that the narcotic contraband recovered in the matter is of commercial quantity or above.

6. Learned counsel for applicant has also relied upon Criminal Misc. Bail Application No. 9660/2021 (Omprakash Verma v. State of UP) passed by High Court of Judicature at Allahbad, Lucknow Bench wherein para 6 and 11 it has been held:-

6. Learned counsel for the applicant has submitted that the general procedure for sampling provided in Standing Order No. 01 of 1989 dated 13.6.1989 has not been complied by the opposite party. He has relied upon clause 2.1 to 2.8 of the aforesaid standing order quoted herein below :-

"2.1 All drugs shall be classified, carefully, weighed and sampled on the spot of seizure.

2.2 All the packages/containers shall be numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the persons from whose possession the drug is recovered and a mention to this effect