ORDER

22.11.2023 Heard Mr. B Lalramenga, learned counsel for the applicant and Mrs. Linda L Fambawl, learned Addl. Public Prosecutor for the State. By filing this bail application under Section 439 Cr.P.C read with Section 37 of the ND&PS Act, the applicant seeks for his enlargement on bail. According to the applicant, he was arrested on 03.08.2023 for alleged seizure of 4.5 kgs of cough syrup containing codeine phosphate. Since then, he has been kept in custody. The arrest of the applicant was preceded vide registration of Excise Case No. 213/2023 dated 02.08.2023 under Section 22(b) & (c)

of the ND&PS Act.

[2.] The applicant contends that he filed Bail Appln. No. 1525/2023 before the Special Court, ND&PS Act, Aizawl, but the same was rejected vide Order dated

14.09.2023.

[3.] Mr. B Lalramenga, learned counsel submits that the applicant is a permanent resident of Aizawl, Mizoram and therefore there is no chance of absconding if he is enlarged on bail by this Court. He submits that the applicant is also suffering from type 2 diabetes and hypertension and at one point of time he had suffered stroke which has affected his health condition till date. On 28.07.2023, he was advised by his Doctor to visit Birla Heart Centre in Kolkata for angiogram and angioplasty at the earliest. However, as he was arrested on 03.08.2023 he could not proceed to Kolkata for his treatment.

[4.] The learned counsel further submits that there is no prima facie case against the applicant. In fact, the applicant was having a drugs license which however, was cancelled sometime in the year 2022. Prior to such cancellation, the applicant was keeping several medicines including cough syrup which could not be disposed of till the time of his arrest. He submits that the allegation that the applicant sold or tried to sell the seized article from his shop is not sustainable, since there is no illegal possession on his part and that the seized article was ordered by him prior to the cancellation of his license.

[5.] The learned counsel submits that seizing the seized articles and sending the same for forensic examination, the Seizing Officer had grossly violated the relevant provisions of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 (Rules of 2022). He submits that according to the Seizure Officer, 4.5 kgs of cough syrup comprising of 45 phials were recovered from him but however, only six samples were drawn in all. Two phials containing 200 ml of cough syrup was drawn for the FSL, two phials for the I.O and two phials for C.O. However, as per Rule 10 of the Rules of 2022, one sample in duplicate should be drawn from each package and container seized. When the packages and container seized together are of identical size and weight bearing identical marking and the contains of each package give identical results or colour test by the drugs identificationkit, conclusively indicating that the package are identical in all respect, the packages and containers are to be carefully bunch for lots of more than 10 packages or containers and for each such lot of packages and containers, one sample in duplicate is to be drawn. However, in the instant case, the learned counsel submits that only six samples were drawn out of the 4.5 kgs of cough syrup alleged to be recovered from him.

[6.] The learned counsel further submits that as per Rule 13 of the Rules of

2022, the samples after being certified by the Magistrate should be sent directly to the FSL for chemical analysis without any delay and the samples should be dispatched under the cover of test memo which should be prepared in duplicate in Form-6. The FSL shall then submit its report to the Court of Magistrate with a copy to the Investigating Officer within 15 days from the date of receipt of the sample. However, when the quantitative analysis requires longer time, the result of the qualitative test should be dispatched to the Magistrate within the specified time limit an