ORDER

This is the second bail application u/S.439 Cr.P.C filed by the applicant for grant of bail. First bail application was dismissed as withdrwn vide order dated 18.10.2022 passed in M.Cr.C.No. 47630/2022.

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 between 2.30 and

7.45 P.M., Police Inspector Aarti Charate of Police Sttion Noorabad on the secret information searched Car No.7C K2938. On the information that in aforesaid vehicle cannabis ganja has been transported. Along with Police force, he reached on the spot Gwalior-Morena Road Takiri Tiraha. Aforesaid car was detained. Aforesaid car was driven by present applicant/accused Hasan Khan resident of Ghaziabad. Along with him co-accused Nasim Khan was sitting. Aforesaid vehicle was searched. From the Dicky of the aforesaid car 50 packets were found appears to be cannabis ganja. From one packet aforesaid contraband was taken out. On physical examination, it was confirmed that it was cannabis. By electric weighing machines aforesaid packets were weighed.

From one bag, they were weighed 61kg.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 was arrested after doing formalities on the spot. From the aforesaid 50 packets, cannabis ganja was took out and in one plastic sheet it was spread over and thereafter filled in two packets. 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 against present applicant/accused and Nahim Khan. Sample was sent for chemical examination. As per chemical report, it is 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. Thereafter from two packets 100-100 grams sample were taken. In these situation, allegation of prosecution that in all 50 packets cannabis was there cannot be assumed. On such premises, learned counsel for the applicant prayed for bail.

Learned Public Prosecutor 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 sample from each packets. In support of their contention learned counsel for applicant-accused has relied on judgment passed High Court of Judicature For Rajasthan At Jodhpur in CrLMB 5643/2019 (Laal Singh Vs. State of Rajasthan) on 16.05.2019 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 No.1.

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 confo