The main legal point established in the judgment is the need for substantial compliance with the guidelines and the mandatory nature of statutory instructions, as well as the criticism of the failure to follow mandatory provisions of the Act by the police officers.

JUDGMENT

Deepak Kumar Agarwal, J. - This is the third application u/S.439 Cr.P.C filed by the applicant for grant of bail. His first bail and second bail applications were dismissed as withdrawn by this Court by orders dated 13.07.2022 and 07.12.2022 passed in M.Cr.C. No.33559/2022 and 54065/2022 by this Court.

2. Applicant has been arrested on 20/12/2021 by police Station-Malanpur, District- Bhind (M.P.) in connection with Crime No.227/2021 for the offence punishable under Section 8/20 of the NDPS Act .

3. Prosecution story, in short, is that on 20/12/2021, Sub-Inspector-Vinod Singh Kushwaha got an information by the informer that a truck bearing Registration No.MP06-HC-1067 standing at Tilori Road Factory area in which five persons are sitting and the said truck is filled up with Bananas and in the middle of Bananas, plastic bags containing cannabis (Ganja) have been hided. On that information, police officials reached the spot and found the said truck standing there in which applicant- Ajay Dangi and accused Kalyan, Sandeep Sharma, Javed and Golu @ Mukesh Jatav were sitting. After doing formalities, the said truck was searched and 39 plastic bags containing 25 Kg. cannabis (Ganja) each total 1026 Kg. cannabis (Ganja) were recovered from the said truck. On physical examination, it was found as Ganja. Thereafter, the contraband was placed on plastic sheet and made homogeneous (Samras) and afterwards, four samples of 5 kg. were taken. The applicant and co-accused could not justify the aforesaid possession of contraband. Applicant was arrested and FIR was lodged. After completion of investigation, charge-sheet has been filed.

4. Learned counsel for the applicant submits that mandatory provision of sampling has not been followed. In fact, from each bag sample ought to have been taken which has not been done. In these situations, it cannot be presumed that in each bag there was Ganja. He relied on the decision of the Apex Court in Netram Vs. State of Rajasthan 2014 (1) CrLR (Raj.) 163 wherein it has been 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.

5. Learned counsel for the applicant further placed reliance upon Criminal Misc. Bail Application No.9660/2021 (Omprakash Verma Vs. State of UP) passed by High Court of Judicature at Allahabad, 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. 06.1989 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 should invariably be made in the panchnama drawn on the spot.

2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) were a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized dru