ORDER

This is the first bail application u/S.439 Cr.P.C filed by the applicant for grant of bail. The applicant was arrested on 22.03.2022 in connection with Crime No.59/2022 by Police Station Noorabad, District Morena (MP) for the offence punishable under Sections 8/20 of NDPS Act.After investigation charge-sheet has been filed.

In brief, the prosecution case is that on 22.03.2022 in between between

2.30- 7.45 P.M., Police Inspector Aarti Charate of Police Station Noorabad on getting secret information searched Car No.7C K2938 that in the said vehicle cannabis ganja is transporting. Along with Police force, he reached on the spot Gwalior-Morena Road Takiri Tiraha. Aforesaid car was detained. Aforesaid car was driven by present co-accused Hasan Khan resident of Ghaziabad. Along with him present applicant accused Naim Khan was sitting. Aforesaid vehicle was searched. From the Dicky of the aforesaid car, 50 packets were found to be cannabis ganja. From one packet of aforesaid contraband was taken out for examination. On physical examination, it was confirmed that it was cannabis. From the aforesaid 50 packets, cannabis ganja was took out and in one plastic sheet it was spread over and thereafter filled in two packetsBy electric weighing machines aforesaid packets were weighed. From one bag, they were weighed 61 kg.900 grams and in another bag 38 kg.300 grams, total 100 kg. 200 grams was found. From both the packets 100-100 grams cannabis were took out for sample purposes. For the aforesaid cannabis, they could not justify their possession. Aforesaid cannabis was seized. Applicant accused along with other co-accused was arrested after doing formalities on the spot. In the night 8.30 P.M. Crime No.59/2022 by Police Station Noorabad, District Morena (MP) for the offence punishable under Sections 8/20 of NDPS Act was registered. Sample was sent for chemical examination. As per chemical report, it was found as cannabis. After investigation, charge-sheet has been filed.

Learned Advocate for the applicant submitted that during seizure and sampling of cannabis ganja mandatory provision has not been followed because as per F.I.R. in Dicky 50 packets cannabis was found. As per mandatory provision of law from each packet, sample has to be drawn. Despite mandatory provision, from all 50 packets cannabis was took out and spread over in plastic sheet. Thereafter, in two packets 100-100 grams sample were taken. In this situation, allegation of prosecution that in all 50 packets cannabis was there cannot be assumed. It is further contended that co-accused Hasan Khan has been enlarged on bail by this Court vide order dated 30th of November, 2022 passed in MCRC No. 55359 of 2022. On such premises, learned counsel for the applicant prayed for bail.

Learned Counsel for the State vehemently opposed the application and prayed for its rejection.

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 50 packets. In fact, they had to take the sample from each packets. In support of contention, learned counsel for applicant-accused has relied on judgment High Court of Judicature For Rajasthan At Jodhpur in CrLMB 5643/2019 (Laal Singh Vs. State of Rajasthan) 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 Netram Vs. State of Rajasthan reported in 2014 (1) CrLR (Raj.) 163 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