High Court
Case Details
Court No. - 91 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28936 of 2021 Applicant :- Om Prakash Yadav @ Prakash Yadav Opposite Party :- State Of U.P Counsel for Applicant :- Anand Kumar Singh,Shailendra Kumar Yadav Counsel for Opposite Party :- G.A. Hon'ble Krishan Pahal,J.
Legal Reasoning
Heard learned counsel for the applicant and learned A.G.A. for the State and perused the material placed on record. Applicant seeks bail in Case Crime No. 158 of 2021, under section 8/20 of The Narcotic Drugs And Psychotropic Substances Act, 1985, Police Station- Rohania, District Varanasi, during the pendency of trial. As per prosecution story, police party was in regular patrolling on 10.03.2021 and received information from the informer that two persons are suspected coming on the road carrying the contraband articles. The accused persons Sonu alias Chhotu was apprehended carrying sacks on his back and was found in possession Ganja. The accused person Sonu Yadav is said to have confessed to the possession of contraband ganja and said to have brought it from his relative Om Prakash alias Prakash and one Ashok Jaiswal and his son Sunny Jaiswal on relying on the said information, the police is said to have gone to the place mentioned by Sonu and seen the three persons near the railway line but who could apprehend only one person there. The two persons are said to have fled away from the said place of arrest of applicant Om Prakash Yadav. The applicant is said to have confessed being involved in the business of selling contraband with accused persons namely Ashok Jaiswal and Sunny Jaiswal. At the pointing out of the applicant, three sacks ganja were found near the underpass of a Nala. An attempt was made by the police to fetch independent witnesses, but no one could be found at the scheduled place. Circle Officer, Sadar was called at the spot and the personal search of two accused persons namely Sonu Yadav alias Chhotu and the applicant was conducted in his presence. From the personal search of the applicant Om Prakash alias Prakash, three sacks were found containing plastic packets with taping containing Ganja in it, on weighting the said contraband, which was found to be 91 Kg. From the said contraband 250 gram of sample Charas was taken for chemical analysis and a Mobile was also recovered from the possession of the applicant. The said arrest was made at 9.30 P.M. on 10.03.2021. Learned counsel for the applicant has stated that there is no independent witness to the said recovery and two first information reports have been lodged as a result of one and the same recovery memo. Learned counsel for the applicant has further stated that the recovery memo does not bear the signatures of the Circle Officer, Sadar, which falsifies the said recovery itself. Learned AGA has opposed the bail application of the applicant on the ground that there is a heavy recovery of 91 Kg Ganja from the possession of the applicant which cannot be planted at all and an attempt was made by the police to fetch the independent witnesses, but nobody could be found at the place of occurrence. Learned AGA has further stated that the Forensic Science Laboratory (FSL) report, Ram Nagar, Varanasi has confirmed the said contraband to be Ganja and the said report is annexed as Annexure No.CA-1 to the counter affidavit. Learned counsel for the applicant has categorically stated that there is no criminal history of the applicant except one case which has been wrongly assigned to the applicant. Learned counsel for the applicant has further stated that the said chemical analysis report does not mention the date of analysis of the sample and the said report dated 9.8.20021 is a vague one. Learned counsel for the applicant has further stated that there is no compliance of Section 42 of the NDPS Act as there was no information to the police before the arrest and search of the applicant regarding the said offence. Learned counsel for the applicant has further stated that the sample has been wrongly taken as it is mandatory that the Standing Order No.01 of 1981 dated 13.06.1989 has to be complied by the arresting party. Much reliance has been placed on the relevant Standing Order which is quoted as under:- "2.1 All drugs shall be classified, carefully, weighed and sampled on the spot of seizure. 2.2 All the packages/containers shall be numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the persons from whose possession the drug is recovered and a mention to this effect should invariably be made in the panchnama drawn on the spot. 2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and Ganja (hashish) were a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. 2.4 In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/container may be carefully bunched in lots of 10 packages/containers except in the case of seizure of ganja and hashish (Ganja), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn. 2.6 Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. 2.7 If such remainder is 5 or more in the case of other drugs and substances and 320 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container. 2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the lot. samples drawn that are for 2.9 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the number of the package(s)/ container(s) from which the sample will also have a reference of the test memo. The seal along with test memos should be kept in another envelope which should also be sealed and marked Secret-Drug sample/test Memo" to be sent to chemical laboratory." Learned counsel for the applicant has further stated that only one sample has been taken and it has not been taken in duplicate as provided under clause 2.9 of the said Standing Order. It is further argued that the said sample was not kept in heat sealed plastic bag and the said plastic bag is not kept on the paper bag or envelop. The alleged sample received by the laboratory does not contain the title "Secret Drug Sample/Test Memo", hence Clause 2.9 of the Standing Order has been completely violated. Learned counsel for the applicant has further stated that the mandatory provision of Section 100 (4) of the Cr.P.C. has also not been complied in addition to Sections 50, 52, 52-A and 57 of the N.D.P.S. Act. Thus, it was mandatory as per the Standing Order referred above, to draw the sample from each packet contained in each sack with the help of field testing kit. In the present case, three sacks were recovered from the possession of the applicant, it has not been referred in the recovery memo as to what numbers of packets of plastic were recovered in each bag. The memo is silent to this fact. Furthermore, the memo is also silent about the fact of the sample having been collected from each plastic packet from the three sacks recovered. Learned counsel has further stated that the conduct of the prosecution of not taking separate sample from each packet recovered is a clear cut of violation of the aforesaid referred Standing Order. Learned counsel for the applicant has further stated that as per clause 2.3 of the Standing Order 24 grams of ganja was required to be collected from each pack as a sample and the said drugs in the package/container shall be well mixed to make it homogeneous and representative before the same (in duplicate) is drawn. After considering the rival submissions of the learned counsel for the parties, this Court finds that the aforesaid standing order, has not been complied with and no representative sample was drawn of all the packages recovered from three sacks. Learned AGA has only stated that the said Sanding order is only advisory and not mandatory. Learned counsel for the applicant has relied on the case law of the Apex Court settled in the case of Noor Aga vs. State of Punjab and Another, 2008 (3) JIC 640 (SC). The Apex Court has held in paragraph nos. 123, 124 and 125 that the standing order in dispute and other guidelines issued by the authority having legal sanction are required to be complied by the subordinate authorities. For ready reference the aforesaid paragraphs are quoted hereinbelow :- 123. Guidelines issued should not only be substantially complied, but also in a case involving penal proceedings, vis-- vis a departmental proceeding, rigours of such guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefor, it becomes obligatory on the part of the subordinate authorities to comply therewith.