The requirement of reasonable grounds for bail under the NDPS Act must be distinctly established, especially for commercial quantity offences.

JUDGMENT (ORAL)

1. Heard Mr. B. Deb, learned counsel appearing for the petitioner/accused who has submitted that an FIR dated 20.06.2023 was lodged before the Officer-in-Charge, Khliehriat Police Station, East Jaintia Hills District by one ABSI W. Lamare wherein, on reliable information received by the police that two drug peddlers are travelling in a Tourist Taxi carrying a consignment of illegal contraband, the same to be delivered to the petitioner herein and one Shahnowar Ali at Guwahati, on a check post being erected the vehicle in question being No. NL 07 T 0815 (Tata Winger) was intercepted at BMS Fuel Station, Nongsning. On a search being conducted from the vehicle, about 200 soap cases containing yellowish-orange powder were found concealed in various hidden compartments in the vehicle, preliminary test of the powder giving a positive result for heroin. The total gross weight of the said powder comes to 2.738 kg.

2. Upon registration of a criminal case being Khliehriat P.S Case No. 8(6) 2023 under Section 21 (c)/29 NDPS Act, the two persons were arrested. In course of investigation, Shri. Jahangir Alom the petitioner herein was also arrested having been named by the co- accused as one of the main persons involved in the said drug peddling operation. On completion of the investigation, the Investigating Officer has filed the charge sheet on 06.09.2023 finding a prima facie case under section 21(c)/29 NDPS Act well established against the petitioner and other co-accused.

3. The learned counsel has again submitted that in the process of arrest of the petitioner, the concerned authorities have breached a number of mandatory procedures, one of which is evident on perusal of the arrest memo, wherein at the time when the petitioner herein was arrested, one witness was present, however, the said witness is a police personnel whereas the mandate of law as indicated in the case of D.K. Basu v. State of West Bengal , (1997) 1 SCC 416 at para 35(2), wherein the provision of Section 41B (b)(i) Cr.P.C, which provides that a memorandum of arrest shall be attested by at least one witness who is a member of the family of the person arrested, has been restated, has also not been complied with.

4. Another contention raised by the learned counsel is that the alleged seizure of the contraband drugs was about 2.738 kg of heroin. The sample collected was only from Ex-A1-3.34 gms, Ex-B1-3.55 gms, Ex-C1- 3.54gms and Ex-D1-3.54 gms, the total sample collected being 7.75 gms. The sample of the contents of all the soap boxes seized was not taken and as such, the alleged seized contraband is only of an intermediate quantity and not of a commercial quantity, the provision of Section 37 of the NDPS Act is therefore not attracted, further submits the learned counsel. The case of Naim Khan v. The State of Madhya Pradesh , wherein vide order dated 05.12.2022, the Hon‟ble High Court of Madhya Pradesh in Misc. Criminal Case No. 56923 of 2022 pertaining to a prayer for grant of bail of an accused in connection with a case under the NDPS Act, has taken into account the argument of the applicant therein, when it was pointed out that the procedure adopted by the concerned police authority in the process of sampling is contrary to the relevant rule, particularly Standing Order No. 01 of 1989 dated 13.06.1989. On this ground, bail was granted.

5. In continuation of his contention on the issue of sampling and the procedure thereof, the learned counsel has cited the provisions of Narcotic Drug and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 and has referred to Rules 3, 10(1) and 11 of the same to say that the procedure presc