Procedural irregularities in sampling and testing of seized contraband under NDPS Act justified the grant of bail.

JUDGMENT (ORAL)

1. Heard Ms. P. Chettri, learned counsel for the petitioner, who has submitted that the petitioner has approached this Court with this instant application for grant of bail in favour of Shri. Promod Chettri, who was arrested on 03.05.2023 in connection with Nongpoh P.S. Case No. 51(5) 2023 under Section 21(b)/29 of the NDPS Act, 1985.

2. The learned counsel has also submitted that the charge sheet have since been filed by the Investigating Officer and the matter is now proceeding for trial before the Court of the learned Special Judge (NDPS), Nongpoh, Ri-Bhoi District.

3. In course of trial, six prosecution witnesses have been examined out of a total of nine witnesses. It is also the submission of the learned counsel that the co-accused in the case has already been granted bail by this Court vide order dated 16.11.2023. The learned counsel has fairly submitted that on previous occasion, a bail application on behalf of the said accused person has already been preferred before this Court, which was duly rejected vide order dated 08.12.2023. However, there has been a change in circumstances which was not noticed by the accused person or the petitioner for the same to be brought to the notice of this Court in the previous round of consideration of the said bail application.

4. The learned counsel has further submitted that records would show that the Standing Order No. 1/1989 issued by the Government of India on the aspect of sampling, testing and measurement of the recovered alleged contraband substances have not been complied with by the prosecution or the arresting authority and as such, the benefit of doubt would go in favour of the accused person in question.

5. In this regard, the learned counsel has led this Court to page 30 of this application, wherein is found a copy of the weight and measurement certificate as regard the manner in which the seized alleged contraband substance was handled. The learned counsel has pointed out that the date and time when the measurement was taken, was recorded as 3rd May, 2023 at 12:18 AM. As to the particulars and quantity of the seized articles, it is indicated that:

“1) 1(one) Empty Transparent Plastic Bag Weighing about 09.26 grams.

2) 1(one) Transparent Plastic Bag containing suspected heroin (The suspected heroin from the 4 few soap boxes are emptied into one transparent plastic bag marked as Ex-A). The weight of Plastic Bag & the suspected heroin is about 55.73 grams.

3. The Net weight of the suspected heroin is about 46.47 grams.”

6. Again, referring to the preliminary test report, copy of which is annexed at page 32 of this application, the learned counsel has submitted that the date and time when the test was conducted was 03/05/2023 at 12:25 AM. The process of such test is indicated as under:

“Brief of test process: A small amount of the suspected Heroin is taken out from the Ex-A (after emptying the suspected heroin from 4(four) soap Boxes into a Transparent Plastic Bag marked as Ex-A) and place it on the spot-plate provided in the kit, subsequently one drop of Reagent A-1 and 3(three) drops of Reagent A-2 are added to the suspected heroin. After 2(two) minutes of the mixture turn into purple colour which is positive for heroin (As indicated in the testing methods provided in the kit)”.

7. From the above, what could be understood is that the alleged heroin seized was initially found in four containers, however, the contents of all the four containers were deposited into one transparent plastic bag (Ex-A) fr