Viresh Kumar Gupta v. State Of Uttarakhand

Learned counsel for the applicant submits that as per the facts narrated in the First Information Report 10 packets of the contraband articles alleged to be charas were recovered from the bag of the applicant. On weighing, the alleged contraband, which was contained in 10 transparent polythene packets, its total weight was 9.940 Kg. After removing these packets and after weighing, the contraband it came to 9.794 Kg. This contraband was mixed and kept in two bundles. Counsel for the applicant further draw attention of this Court to the report of the 1 Malkhana register of Police Station Banbasa, District Champawat.

3. Learned counsel for the applicant would submit that the sample from the contraband seized, whereby 10-10 grams of sample was taken on 12.02.2024 from the two bundles. Result of the report of the Forensic Science Laboratory gave positive test of Charas of the samples which were sent to it. Learned Senior Counsel for the applicant has submitted that there are NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES (SEIZURE, STORAGE, SAMPLING AND DISPOSAL ) RULES, 2022 (hereinafter referred to as the Rules 2022), which has been framed in exercise of power conferred by Section 76 read with Section 52-A of the Narcotic Drugs and Psychotropic Substances Act, 1985.

4. Learned counsel draw attention of this Court towards Rule 10 of the Rules, which is extracted as below: “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 forty packages or containers. (3) In case of drawing sample from a particular lot, it shall be ensured that representative sample in equal quantity is taken from each package or container of that lot and mixed together 2 to make a composite whole from which the samples are drawn for that lot.”

5. Learned counsel would contend that when the contraband was seized, one sample in duplicate should have been taken from each of the packets and if the packets and containers seized were of identical in size and width bearing identical marking and contains of each packet gave identical results of colour test by drugs identification kit, conclusively indicating that the drugs are identical in all respects, then they may be bunched in lots of not more than 40 packages or containers in respect of charas.

6. Learned Senior Counsel has contended that in the present case, no such sample was taken from each of the packet before they were mixed together and two bundles were made out of 10 packets. He has further contended that neither weight of each bundle was taken separately and admittedly since 10 packets were alleged to have been recovered from the possession of the applicant, whose total weight was 9.794 grams, therefore, no packet containing contraband alleged to be charas which comes in the commercial quantity.

7. In support of his contention, learned counsel has placed reliance on the principles of law, as laid down by the Hon’ble Supreme Court, in the case of Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panaji, Goa, (1993) 3SCC 145.

8. In the case of Gaunter Edwin Kircher (supra), the Hon’ble Supreme Court observed that “before examining the scope of this provision, we shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas 3 weighing 7 gms and 5 gms respectively. As already mentioned only one piece was sent for chemical analysis and PW 1, the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms. From this report alone it cannot be presumed or inferred that the substance in the other piece weighing 7 gms also contained Charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not to all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms of Charas were recovered from the accused.”

9. Rule 10 of the Rules of 22 lays down process for drawing of samples. In the present matter, the samples of the alleged recovered contraband were not drawn in accordance with the above rules. The courts are not expected to accept every word of the complainant as gospel truth and invoke the bar of Section 37 of the Act, 1985 against the applicant.

10. Personal liberty is a very precise fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

11. As per the submissions of learned counsel for the parties, the drawing of the sample does not appear to be in conformity with the Rules of 22, therefore, at this stage, these circumstances give rise to a reasonable ground to presume that the applicant may not be held guilty of the alleged offence. 4

12. The object of keeping the accused persons in detention during the trial is not punishment. The main purpose is manifestly to secure the attendance of the accused. Applicant is in judicial custody since 10.02.2024. Applicant Viresh Kumar Gupta is a permanent resident of District Champawat. Therefore, there is no likelihood of applicant absconding as well. There is nothing on record to indicate that the applicant had earlier been involved in any offence relating to Narcotic Drugs and Psychotropic Substances Act.

13. Heard learned counsel for the parties and perused the material available on record.

14. Perusal of Rule 10 (1) would reveal that one sample in duplicate shall be drawn from each packet and container seized in the present case in total 10 packets were seized from the applicant but no sample was taken from each of these 10 packets. Clause 3 of the Rule 10 would come into play on when after taking the sample from each packet seized then only when the contents of the packets and bunch together in lots. Thereafter, sample is to be drawn from a particular lot. Thus, the procedure prescribed of the drawing sample is envisaged under Rule 10 (i) and 10 (ii) was not complied with

15. On the basis of the above submissions, this Court is of the view that Rule 10 (1) and (2) of the Rules have not been followed.

16. Having considered the submissions of learned counsel for the parties and in the facts and circumstances of the case, there is no reason to keep the applicant behind 5 the bars for an indefinite period, therefore, without expressing any opinion as to the merit of the case, this Court is of the view that the applicant deserve bail at this stage.

17. The bail application is allowed.

18. Let the applicant- Viresh Kumar Gupta be release3d on bail on his executing a personal bond and furnishing two reliable sureties, each in the like amount, to the satisfaction of the Court concerned with the following conditions: I) He shall attend the Trial Court regularly, and, he will not seek any unnecessary adjournment. II) He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of this case. III) He shall not leave India without any prior permission of the Trial Court. It is clarified that if the applicant misuses or violates any of the conditions, imposed upon him, the complainant will be free to move the court for cancellation of bail. Dated: 01.05.2025 Kaushal (ALOK MAHRA, J.) 6