Point of Law: Standing Orders cannot be flouted and in the absence of substantial compliance of the Standing Orders, adverse inference has to be drawn against the prosecution.

ORDER :

1. The petitioners, who are A1, A2, A4 and A8 were arrested by the Sub-Inspector of Nandigam Police Station on 17.01.2022 while the petitioners along with 8 others, were transporting 214 kgs of Ganja in 107 packets. The police seized one Honda car and 55 packets of Ganja each weighing 2 kgs from the 1st petitioner/A1 and one Maruthi car and 40 packets of Ganja each weighing 2 kgs from A2. It is further the case that one packet of ganja was drawn as sample out of the seized contraband from 3 vehicles of which, two vehicles were seized from the possession of these petitioners.

2. The main ground urged by the counsel for the petitioners are that i) there is non compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) as there is no mention of any intimation being given to the superior officer within 72 hours as required; ii) neither remand report nor the complaint indicate about the sampling done in accordance with the Standing Order 1 of 1989 dated 13.06.1989.

3. Learned counsel for the petitioners also relied upon the judgment of Hon’ble Supreme Court in the case of Union of India v. Mohanlal in Criminal Appeal No.652 of 2012, specifically to para 20 of the judgment, which reads as follows

“20. (1) No sooner the seizure of any Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub- Section 3 of Section 52A, as discussed by us in the body of this judgment under the heading ‘seizure and sampling’. The sampling shall be done under the supervision of the magistrate as discussed in paras 13 and 14 of this order.

(2)The Central Government and its agencies and so also the State Governments shall within six months from today take appropriate steps to set up storage facilities for the exclusive storage of seized Narcotic Drugs and Psychotropic and controlled Substances and Conveyances duly equipped with vaults and double locking system to prevent theft, pilferage or replacement of the seized drugs. The Central Government and the State Governments shall also designate an officer each for their respective storage facility and provide for other steps, measures as stipulated in Standing Order No.1/89 to ensure proper security against theft, pilferage or replacement of the seized drugs.

(3) The Central Government and the State Governments shall be free to set up a storage facility for each district in the States and depending upon the extent of seizure and store required, one storage facility for more than one district.”

4. Learned counsel submits that admittedly, no sampling was done under the supervision of the Magistrate. He also relied upon the judgment of Hon’ble Supreme Court in Noor Aga v. State of Punjab, (2008) 16 SupremeCourtCases 417, particularly, para 91, which reads as follows

“91. The logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance with these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution.”

4. Further, he relied upon the judgment in the case of Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra, 2005 STPL(LE) 34710 SC, wherein the Hon’ble Supreme Court held at paras 47 and 48, which reads as follows:

“47. Does this statute require that before a person is released on bail, the court, albeit prima facie