High Court
Case Details
Neutral Citation No. - 2023:AHC:126001 Court No. - 85 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26060 of 2023
Legal Reasoning
Applicant :- Mahendra Kumar Patel And Another Opposite Party :- State of U.P. Counsel for Applicant :- A Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J. 1. Heard Sri A Kumar Srivastava, learned counsel for the applicants and learned A.G.A. for the State. 2. The instant bail application under Section 439 Cr.P.C. has been filed with the prayer to enlarge the applicants on bail in Case Crime No. 104 of 2023, u/s 8/20 N.D.P.S. Act, P.S. Gopiganj, District Bhadohi, during the pendency of the trial. 3. Contention of counsel for the applicants is that in the car of applicant No.2, 92 kg. 500 gms. Ganja was shown to be found in four bags but no sample was taken while preparing inventory and the weight of the bags recovered were not taken separately. There is no public witness and there is non-compliance of Section 50 of N.D.P.S. Act. 4. Law relating to collection of sample has been clearly prescribed in Clause 2.1 to 2.8 of Standing Order/Instruction No.1 of 1989 which are as follows:- "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 charas (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 given 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 package/containers except in the case of ganja and hashish (charas), 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 20 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 the in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot." 5. Perusal of the above Standing Order clearly shows that all drugs should be classified/weighed and sampled on the spot of seizure and sample should be taken from each packet/container if there are more than one packet/container and it is also prescribed by the above Standing Order that sample of narcotic drugs and psychotropic substances seized shall be drawn on the spot of recovery in presence of search witnesses and persons from whose possession the drug is recovered and a mention to this effect should invariably be made in panchnama drawn on the spot. 6. This High Court in Bail Application No. 18303 of 2020 by order dated 7.6.2022 considered several judgements including the judgement in Noor Aga Vs. State of Punjab (2008) 3 JIC 640 (S.C.) and observed that guidelines/Standing Order should not only be substantially complied, but also in a case involving penal proceedings for non-compliance of Standing Order which are mandatory in nature. 7. Similarly, High Court of Patna in judgement of Tej Narayan Singh vs. State of Bihar, 2017 0 Supreme (Pat) 1341 in paragraph-13, observed that the provision of N.D.P.S. Act as well as Standing Order are mandatory in nature and in case of non- compliance of mandatory provision it shall be highly unsafe to admit the prosecution version. Paragraph-13 of the aforesaid judgement reads as under:- "13. Giving anxious thought over the prosecution version in consonance with the deficiency on account of non-performance of the mandatory provisions of law, it looks highly unsafe to admit the prosecution version whereupon the judgment of conviction and sentence recorded by the learned lower Court is set aside. Appeal is allowed. Appellant is on bail. Hence, is discharged from its liability." 8. Similarly, in the judgement of Gaunter Adwin Kircher vs. State of Goa, Secretariat, Panaji, Goa, reported in (1993) 3 SCC 145, Hon'ble Apex Court observed that the sample should be taken from all recovered bags separately. 9. In the present case neither the sample was taken on the spot while seizing the Ganja nor all the bags were weighed separately which is clearly mentioned in the Standing Order/Instruction No.1 of 1989 as well as law laid down by the Apex Court as mentioned above.
Decision
10. In view of the above fact, the applicants are entitled to be released on bail. 11. Let the applicants- Mahendra Kumar Patel and Ashish Kumar Patel involved in the aforementioned crime be released on bail, on their furnishing a personal bond and two sureties each in the like amount, to the satisfaction of the court concerned, with the following conditions:- 1. The applicants shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial. 2. The applicants shall cooperate in the trial sincerely without seeking any adjournment. 3. The applicants shall not indulge in any criminal activity or commission of any crime after being released on bail. 12. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. 13. Identity, status and residence proof of the applicants and sureties be verified by the court concerned before the bonds are accepted. Order Date :- 9.6.2023 Vandana Digitally signed by :- VANDANA GAUTAM High Court of Judicature at Allahabad