MANJAY KUMAR v. STATE NCT OF DELHI

Judgment

#1. The petitioners seek regular bail in connection with FIR No.133/2025 dated 05.03.2025, registered at Police Station Civil Lines, District North, New Delhi, for offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS Act”]. Signature Not Verified Signed By:BHUPENDER Signing Date:19.03.2026 21:18 BAIL APPLN. 4206/2025 & BAIL APPLN. 4207/2025 Page 1 of 27 A. PROSECUTION CASE 2. The case of the prosecution is as follows: a. Upon receipt of information, three persons, including petitioners herein and co-accused Kushindra Kumar, were apprehended on 04.03.2025 at 06:40 PM. Notices under Section 50 of the NDPS Act were served upon them. They refused to undergo personal search before the nearest Gazetted Officer or Magistrate. b. During their personal search, a total of 1,955 grams of ganja was recovered – 677.9 grams [inclusive of weight of a white opaque polythene] was recovered from accused Manjay Kumar [petitioner in BAIL APPLN. 4206/2025], and 1,277.1 grams [inclusive of weight of a transparent polythene] was recovered from accused Vikas Kumar [petitioner in BAIL APPLN. 4207/2025]. A seizure memo dated 04.03.2025 was prepared. c. During the course of further investigation, the accused persons disclosed that a large quantity of ganja was kept at their rented house in Andha Mughal, Pratap Nagar, Delhi. The petitioners herein further revealed that two parcels containing ganja were lying at Mark Express Courier Company, Jhandewalan, Delhi, and that they had procured the recovered ganja from one Manoj Pradhan, who is a resident of Odisha. d. The search of House No. 62, Ground Floor, J-Block, Katra Khema No. 4, Andha Mughal, Kishanganj, Delhi, was conducted at the instance of the petitioners and co-accused Kushindra Kumar. Five packets and one polythene containing a total of 12,882.8 grams of ganja were recovered, and a seizure memo dated 04.03.2025 was Signature Not Verified Signed By:BHUPENDER Signing Date:19.03.2026 21:18 BAIL APPLN. 4206/2025 & BAIL APPLN. 4207/2025 Page 2 of 27 prepared. One Nokia mobile phone and five Aadhaar cards, belonging to four different persons, were also recovered. Two of the Aadhaar cards were in the name of Ankit Kumar Singh, but contained photographs of different individuals, including one photograph of accused Vikas Kumar. e. Thereafter, a raid was conducted at Mark Express Private Limited, 2E/10, Jhandewalan Extension, Delhi, and two parcels, each containing nine packets, with 18.700 kilograms and 18.450 kilograms of ganja respectively, were recovered in two separate boxes, described as “Khaki Gatta Petis”. The slips on the parcels bore the same mobile number as recovered from the rented accommodation. They listed a fake name “Deepak Kumar”, used by accused Manjay Kumar, as the consignee. A seizure memo dated 05.03.2025 was prepared. f. The mobile phones of the petitioners herein and co-accused Kushindra Kumar were seized during investigation, and the Call Detail Records of their mobile numbers were obtained. These records showed that the locations of their mobile phones corresponded to both the spot of the initial seizure, and the rented accommodation. g. It was further revealed that the petitioners were in regular contact with one Manoj Pradhan. The bank statements of the petitioners, co-accused Kushindra Kumar, and Manoj Pradhan were obtained, which revealed that sums of Rs. 1,00,000/- from each of the petitioners, were transferred on 24.11.2024 to the account of Manoj Pradhan, and a further amount of Rs. 1,00,000/- was transferred Signature Not Verified Signed By:BHUPENDER Signing Date:19.03.2026 21:18 BAIL APPLN. 4206/2025 & BAIL APPLN. 4207/2025 Page 3 of 27 from the account of accused Vikas Kumar on 03.12.2024 to the same account. h. A raid was conducted at the house of co-accused Manoj Pradhan, who was found absconding and failed to join the investigation, despite service of notices under Section 67 of the NDPS Act. Accordingly, non-bailable warrants have been issued against him. i. On 18.03.2025, all the sealed parcels of the recovered contraband were produced before the learned Magistrate’s Court for sampling proceedings under Section 52A of the NDPS Act. Samples were drawn from each packet/polythene, and were sent to the Forensic Science Laboratory [“FSL”]. As per the FSL report dated

13.02.2026, which was handed up in Court during the hearing on

23.02.2026, all five exhibits tested positive for the presence of

ganja. Mr. Tarang Srivastava, learned Additional Public Prosecutor, stated that the FSL report will be filed before the Special Court alongwith a supplementary chargesheet. j. The original rent agreement/lease deed of the rented house in which the petitioners were residing was taken into police custody, and the owner of the house was examined. She informed that accused Vikas Kumar and Manjay Kumar had introduced themselves as Ankit Kumar Singh and Deepak Kumar, respectively. k. The chargesheet was filed before the Special Court on 18.08.2025, but investigation regarding the source of the recovered contraband is still ongoing. l. The present case thus involves 51.937 kilograms of ganja, which Signature Not Verified Signed By:BHUPENDER Signing Date:19.03.2026 21:18 BAIL APPLN. 4206/2025 & BAIL APPLN. 4207/2025 Page 4 of 27 amounts to a commercial quantity.

#3. On this basis, it is contended that the petitioners were involved in illicit drug trafficking. They were both arrested on 05.03.2025. B. 4. SUBMISSIONS BY LEARNED COUNSEL FOR THE PARTIES I have heard Mr. Aditya Aggarwal, learned counsel for the petitioners, and Mr. Tarang Srivastava, learned Additional Public Prosecutor. 5. Although several contentions have been raised in the bail applications, Mr. Aggarwal pressed only two of them at this stage: a. He submitted that the sampling procedure adopted by the prosecution was not in consonance with the provisions of Section 52A of the NDPS Act, thereby rendering the recovery doubtful. b. He submitted that the recovered substance does not constitute ganja at all, in terms of the definition contained in Section 2(iii)(b) of the NDPS Act.

#6. With regard to the first submission, Mr. Aggarwal submitted as follows: a. The present prosecution is based upon three distinct recoveries: [i] spot recovery of 677 grams from accused Manjay Kumar, and 1,277 grams from accused Vikas Kumar; [ii] 12.882 kilograms in six packets, recovered from the flat allegedly rented by the petitioners; and [iii] 18.700 kilograms and 18.450 kilograms allegedly recovered from nine packets each, contained in two courier parcels. b. The seizure memo in respect of the recovery from the flat rented by the petitioners shows that the substance was in a blue-coloured bag Signature Not Verified Signed By:BHUPENDER Signing Date:19.03.2026 21:18 BAIL APPLN. 4206/2025 & BAIL APPLN. 4207/2025 Page 5 of 27 and five packets, all of which were packed in a khaki-coloured pasting polythene. Each of the aforesaid bags/packets were separately weighed, and then kept in a white-coloured plastic bag marked as “Mark D”. c. The seizure memo in respect of the recovery from the courier similarly reveals that there were two cardboard boxes which, alongwith their contents, weighed 20.40 kilograms and 20.70 kilograms respectively. The first box contained nine plastic packets. The nine packets were kept together in a single container, weighing 18.700 kilograms, and marked as “Mark P1”. Similarly, nine packets were found in the second cardboard box, which were collectively weighed at 18.450 kilograms. These packets were thereafter placed in a single container, and marked as “Mark P2”. d. The samples were drawn on 18.03.2025 in proceedings conducted before the learned Magistrate. e. As far as the recoveries from the flat and the courier parcels are concerned, Rule 10 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 [“Sampling Rules”], required that, two samples of 100 grams each be drawn from each of the packets/bags. In violation of this requirement, samples of 200 grams each were, in fact, drawn collectively from Marks D, P1, and P2. f. Violation of the aforesaid Rule renders the sampling process defective, and casts serious doubt upon the consequent testing of the samples.

#7. In support of the second argument, Mr. Aggarwal submitted as Signature Not Verified Signed By:BHUPENDER Signing Date:19.03.2026 21:18 BAIL APPLN. 4206/2025 & BAIL APPLN. 4207/2025 Page 6 of 27 follows: a. Section 2(iii)(b) of the NDPS Act, defines “ganja” as “the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops)”. b. In the present case, however, the FIR and the seizure memos contain reference to the substances comprising of dried branches, grass-like substances and leaves, but not to “flowering or fruiting tops”, which is essential to satisfy the requirement of the definition itself. c. The identification of the seized substance as “ganja” is, therefore, seriously disputed.

#8. As far as Mr. Aggarwal’s first argument is concerned, Mr. Srivastava submitted that, under Rule 10(2) of the Sampling Rules, drawing of one sample from multiple packages may be permissible in certain factual circumstances. In any event, he argued that the question of violation of Section 52A of the NDPS Act is not a relevant consideration at the stage of grant of bail. 9. Regarding the second aspect, Mr. Srivastava submitted that the FSL report dated 13.02.2026, received during the pendency of the captioned bail applications, a copy of which was handed up in Court during the hearing on 23.02.2026, clearly referred to each packet as containing “Dried brownish green colour vegetative material having flowering and fruiting tops”. 10. Learned counsel on both sides referred to several judgments of the Supreme Court and this Court in support of their respective contentions, to which I shall refer at the appropriate stage in this judgment. Signature Not Verified Signed By:BHUPENDER Signing Date:19.03.2026 21:18 BAIL APPLN. 4206/2025 & BAIL APPLN. 4207/2025 Page 7 of 27 ANALYSIS REGARDING SAMPLING PROCEDURE C. 11. Rules 9 to 11 of the Sampling Rules, relied upon by Mr. Aggarwal, are relevant for the purposes of the present judgment. They read as follows: “9. Samples to be drawn in the presence of Magistrate. – After application to the Magistrate under sub-section (2) of section 52A of the Act is made, the Investigating Officer shall ensure that samples of the seized material are drawn in the presence of the Magistrate and the same is certified by the magistrate in accordance with the provisions of the said-sub-section.

#10. Drawing the samples. – (1) One sample, in duplicate, shall be drawn from each package and container seized. (2) When the packages and containers seized together are of identical size and weight bearing identical marking and the contents of each package give identical results on colour test by the drugs identification kit, conclusively indicating that the packages are identical in all respects, the packages and containers may carefully be bunched in lots of not more than ten packages or containers, and for each such lot of packages and containers, one sample, in duplicate, shall be drawn: Provided that in the case of ganja, poppy straw and hashish (charas) it may be bunched in lots of not more than fourty packages or containers. In case of drawing sample from a particular lot, it shall be (3) ensured that representative sample in equal quantity is taken from each package or container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.

#11. Quantity to be drawn for sampling. – (1) Except in cases of opium, ganja and charas (hashish), where a quantity of not less than twenty- four grams shall be drawn for each sample, in all other cases not less than five grams shall be drawn for each sample and the same quantity shall be taken for the duplicate sample. (2) The seized substances in the packages or containers shall be well mixed to make it homogeneous and representative before the sample, in duplicate, is drawn. (3) sampling, the whole of the seized quantity may be sent.”1 In case where seized quantities is less than that required for 1 Emphasis supplied. Signature Not Verified Signed By:BHUPENDER Signing Date:19.03.2026 21:18 BAIL APPLN. 4206/2025 & BAIL APPLN. 4207/2025 Page 8 of 27

#12. The factual position, with regard to the recoveries and sampling in the present case, is largely undisputed. Details regarding the number of packets in each recovered parcel, and the manner in which sampling was carried out, emerge from the seizure memos and the proceedings before the learned Magistrate on 18.03.2025. Mr. Srivastava has also handed up a tabular statement identifying the quantity of sample taken from each packet, which is reproduced below: Signature Not Verified Signed By:BHUPENDER Signing Date:19.03.2026 21:18 BAIL APPLN. 4206/2025 & BAIL APPLN. 4207/2025 Page 9 of 27

#13. Mr. Aggarwal contended that Rules 10 and 11 of the Sampling Rules, read together, require two samples to be drawn from “each package and container seized”. The only exception provided under Rule 10(2) of the Sampling Rules arises when the packages and containers are of identical size and weight, bearing identical marks, and the contents of each package yield identical results on the colour test using the drug identification kit. This factual position is admittedly not satisfied in the present case. 14. Proceeding on the basis of the tabular statement reproduced above, which was handed up by the prosecution itself, it is clear that samples of approximately 200 grams each were taken from Parcel A and Parcel B, which where the spot recoveries from the two petitioners. No ground under Section 52A has been raised in respect of these samples. It may be noted, however, that these samples by themselves constitute far less than 20 kilograms, which is the commercial quantity of ganja under the NDPS Act. Taken by themselves, therefore, these samples would not attract the rigours of Section 37 of the NDPS Act. 15. We, therefore, turn to the sampling in respect of parcels marked D, P1, and P2, which were the recoveries from the petitioners’ flat and the two courier parcels. Each of these contained multiple smaller parcels – six in the case of Mark D, and nine each in the case of Marks P1 and P2. The tabular statement shows that the total quantity drawn from each of the three parcels was collectively in the region of 200 grams, which is corroborated by the sampling order. 16. The table also shows that, while drawing samples from each of the constituent packets, the quantities drawn were fairly random. For Signature Not Verified Signed By:BHUPENDER Signing Date:19.03.2026 21:18 BAIL APPLN. 4206/2025 & BAIL APPLN. 4207/2025 Page 10 of 27 example, 4.9 grams was drawn from parcel D1, which weighed 5932.3 grams, whereas 49 grams was drawn from parcel D6, which weighed only 512.2 grams. Similarly, although each of the packets in parcels P1 and P2 weighed approximately the same, the samples drawn ranged from

15.7 grams to 39.4 grams in parcel P1, and from 8.8 grams to 48.5 grams in parcel P2. 17. It prima facie appears that this method of sampling does not conform to the requirements of the Sampling Rules. Samples were to be drawn from each packet or container, but appear to have been drawn collectively from several packets, which were recovered in a single larger container or package. 18. In several orders of this Court, relied upon by Mr. Aggarwal, bail has been granted, despite the application of Section 37 of the NDPS Act, on similar grounds. Reference has been made in those orders to Standing Order No. 1/1988, which laid down the sampling procedure prior to framing of the Sampling Rules. Some of the said orders are as follows: a. In Gopal Das v. NCB2, mixing of contents of packets was held to be contrary to the procedure, thereby entitling the accused to bail. b. In Ahmad Hassan Muhammed v. The Customs3 also, a coordinate Bench of this Court specifically held that mixing of packets for the purposes of sampling is not permissible. c. In Laxman Thakur v. State (Govt. of NCT of Delhi)4, the Standing Order was held to be a requirement of law, and it was held that mixing of various packets into one, and drawing a sample from the 2 BAIL APPLN. 3491/2020, decided on 04.02.2021; paragraph 8. 3 BAIL APPLN. 3076/2020, decided on 11.02.2021. Signature Not Verified Signed By:BHUPENDER Signing Date:19.03.2026 21:18 BAIL APPLN. 4206/2025 & BAIL APPLN. 4207/2025 Page 11 of 27 mixture, was not permissible. d. In Sarvan v. State Govt. of NCT of Delhi5, samples were taken from some of the packets in the parcel, but not from others, which was held to constitute a violation of the sampling procedure. e. In Sachin Kumar v. State (Govt. of NCT of Delhi)6, samples were taken from each “katta”, but not from each of the parcels therein. f. In Aas Mohammad v. State Govt. of NCT of Delhi7 also, the recovery consisted of 43 kattas containing 281 bundles. Samples were not drawn from each bundle, but only from 43 kattas as a whole.

#19. Mr. Srivastava sought to distinguish these judgments, on the basis that the sampling in the present case, was conducted from separate packets, and the contents of the packets were never mixed prior to drawing the sample. This factual submission also aligns with the order of the Magistrate and the fact that separate sample weights from each packet have been identified. Nonetheless, I do not find any significant difference between the aforesaid cases and the present case on this basis. The requirement that samples be drawn from each packet is intended to ensure that the packets containing the narcotics or contraband can be specifically identified. By mixing the contents prior to sampling, this objective is defeated. However, the case is no different if random samples are drawn from each packet separately and mixed before testing, as has occurred in the present case. Such a procedure also results in the prosecution’s 4 BAIL APPLN. 3233/2022, decided on 14.12.2022; paragraphs 8 to 11. 5 BAIL APPLN 2781/2022, decided on 18.01.2023. 6 BAIL APPLN. 557/2023, decided on 26.04.2023. 7 BAIL APPLN 2334/2023, decided on 20.03.2024. Signature Not Verified Signed By:BHUPENDER Signing Date:19.03.2026 21:18 BAIL APPLN. 4206/2025 & BAIL APPLN. 4207/2025 Page 12 of 27 inability to quantify the contraband substance with precision. It may be argued that some of the individual smaller packets contained the contraband substance, while others did not, but the mixing of the samples has led to the entire quantity being misidentified as ganja. 20. In this factual background, learned counsel on both sides drew my attention to certain recent judgments of the Supreme Court, which consider the effect of non-compliance with Section 52A of the NDPS Act. 21. The judgments, cited in chronological order, are discussed below: a. In Narcotics Control Bureau v. Kashif8, the Supreme Court held that delay or non-compliance with Section 52A cannot be treated as an illegality entitling the accused to be released on bail or claim acquittal. Relying upon a purposive interpretation of the statute and the provisions of Section 37 of the NDPS Act, the Court observed that Section 52A was intended to ensure the early disposal of seized contraband, drugs, and substances, but a lapse or delay in compliance would constitute a procedural irregularity, rather than vitiating the trial or entitling the accused to bail. The Court noted that other circumstances and evidence would have to be considered in order to determine the issue. b. The judgment in Bharat Aambale v. State of Chhattisgarh9 also involved the alleged mixing of the contents of various packets prior to sampling, which led the accused to appeal against his conviction. While upholding the conviction, the Supreme Court