- (1.)Heard learned counsel for the applicant, Sri Ran Vijay Singh, learned A.G.A. for the State and perused record.
(2.)The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.96 of 2023 under Sec. 8/20 of NDPS Act, PS Fakharpur, district Bahraich.
(3.)Learned counsel for the applicant has submitted that 41 kg. of Ganja is shown in the Diggi of the four-wheeler vehicle in which the applicant and other three persons were sitting. It has been submitted that the co-accused Ram Manohar Yadav was sitting beside the driver of the vehicle and the applicant was sitting behind seat of the vehicle. He has further submitted that co-accused Ram Manohar Yadav has been granted bail by this Court on 28/10/2023 in Crl. Misc. Bail Application No.6209 of 2023 by a detailed order: The order dtd. 28/10/2023 is quoted below:-
"1. Heard Sri Ravi Singh, learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.

2. This bail application has been moved by the accused/applicant-Ram Manohar Yadav for grant of bail, in Case Crime No. 96 of 2023, under Sec. 8/20 NDPS Act, Police Station Fakharpur, District Bahraich during trial.

3. Learned counsel for the accused-applicant while pressing the bail application submits that it is a case of false implication. Nothing as claimed by the prosecution has been recovered either from the person or from the vehicle wherein the applicant was allegedly sitting. It is also submitted that the arrest and recovery of ganja is under the cloud of suspicion for want of independent public witnesses as no serious efforts have been done by the police party to procure the public witnesses which were admittedly present.

4. It is also submitted that Sec. 50 of NDPS Act has not been complied with in letter and spirit and the right for being searched before the Magistrate or raiding officer has not been communicated, as is required by law established.

5. It is further submitted that samples have not been taken in accordance with the procedure provided under Sec. 52-A of NDPS Act and the link evidence in this regard is also missing with regard to the safe custody of samples as the sample is shown to have been received in the forensic lab on 11/4/2023 while the incident is of 28/3/2023. Thus, the possibility of tampering with the samples could not be ruled out in absence of any evidence. Reliance in this regard has been placed on Standing Order No.1/89 issued by the Department of Revenue, Ministry of Revenue, Government of India and on the judgments in the cases of State of Kerala and others vs. Kurian Abraham (P) Ltd (2008) 3 SCC 582, Noor Aga vs. State of Punjab (2008) 16 SCC 417, Union of India (UOI) vs. Mohanlal and others, (2016) 3 SCC 379, Mohd Muslim vs State (NCT of Delhi) and Rabi Prakash vs State of Odisha, SCOR/83201/2023.

6. While referring to the forensic report pertaining to examination of sample allegedly sent for forensic examination, it is vehemently submitted that having regard to the definition of ganja as provided under sec. 2(iii)(b) of NDPS Act only flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), are punishable and neither in the sample drawn by the police personnel nor in the forensic lab report it has been mentioned as to whether the whole sample was comprising of flowering or fruiting tops of the cannabis plant or the stem and leaves of the plant were also present, therefore the whole quantity of ganja as shown by the prosecution may not be believed.

7. It is next submitted that applicant is languishing in jail in this case since 28/3/2023, he is not having any criminal history and charge sheet has been submitted and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.

8. Learned A.G.A., on the other hand, opposes the prayer of bail of the applicant on the ground that 41kg of ganja has been recovered from the vehicle wherein the applicant and other co-accused persons were found sitting and thus he was conscious possession of ganja and having regard to twin conditions as enumerated under Sec. 37 of NDPS Act, the applicant is not entitled to be released on bail.

9. Perusal of the record would reveal that on vehicle being apprehended by the police at relevant day and time and on being searched 41 kg of ganja has been recovered from the vehicle wherein the applicant and other co-accused persons were found sitting. Various submissions have been raised on behalf of the applicant in order to show that Sec. 50 of the NDPS Act has not been complied with and the sample has not been drawn in accordance with the guidelines issued by the Department of Revenue, Ministry of Finance, Government of India and the law laid down by Hon'ble Apex Court in the case of Union of India vs Mohanlal and another (supra). It has also been highlighted that link evidence with regard to safe custody of the sample is missing in this case.

10. At the outset, it is worth mentioning that Sec. 52A of the N.D.P.S. Act was introduced by way of an amendment by the Central Government in the year 1989 and the matter relating to sampling is governed by the said Sec. of the law and the various instructions issued by the Govt. of India from time to time.

11. Sec. 52A of the Narcotic Drugs and Psychotropic Substances Act reads as hereunder provided:

[52A. Disposal of seized narcotic drugs and psychotropic substances. ? (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified.

(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under sec. 53, the officer referred to in sub-sec. (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-sec. (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of?

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or

(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

(3) Where an application is made under sub-sec. (2), the Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-sec. (2) and certified by the Magistrate, as primary evidence in respect of such offence].

12. A plain reading of the aforesaid Sec. shows that the manner and procedure of sampling is not specifically provided in it and rather by Sub Sec. (1), the Central Government has been empowered to prescribe by notifications the procedure to be followed for seizure, storage and disposal of drugs and psychotropic substances. The Central Government has in exercise of that power issued Standing Order No. 1 of 1989 which prescribes the procedure to be followed while conducting seizure of the contraband. The said Order of 1989 succeeds the previous Standing Order No.1 of 1988.

13. The Standing Order No.1/89 dtd. 13/6/1989 issued under subsec. (1) of Sec. 52A of NDPS Act by the Department of Revenue, Ministry of Finance, Government of India. Sec. (II) of the said Order of 1989 provides for the general procedure for sampling, storage and reads as under:-

STANDING ORDER No. 1/89 Sec. II - GENERAL PROCEDURE FOR SAMPLING, STORAGE, ETC.

"2.1. All drugs shall be properly classified, carefully weighed and sampled on the spot of seizure.

2.2. All the packages/containers shall be serially 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 person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama 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) where 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/containers may be carefully bunched in lots of ten packages/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 (i n 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 samples in equal quantity are 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.

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 a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the No. of the package(s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope 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 the chemical laboratory concerned.

3. The seizing officers of the Central Government Departments, viz., Customs, Central Excise, Central Bureau of Narcotics, Narcotic s Control Bureau, Directorate of Revenue Intelligence, etc. should despatch samples of the seized drugs to one of the laboratories of the Central Revenues Control Laboratory nearest to their offices depending upon the availability of test facilities . The other central agencies like BSF, CBI and other central police organizations may send such samples to the Director, Central Forensic Laboratory, New Delhi. All State enforcement agencies may send samples of seized drugs to the Director/Deputy Director/ Assistant Director of their respective State Forensic Science Laboratory.

3.1. After sampling, a detailed inventory of such packages/containers shall be prepared for enclosure with the panchnama. Original wrappers shall also be preserved for evidentiary purposes."

14. In State of Kerala and Ors. v. Kurian Abraham (P) Ltd. (2008) 3 SCC 582 wherein following the earlier decision rendered in Union of India v. Azadi Bachao Andolan (2004) 10 SCC 1, it was held that the aforesaid statutory instructions are mandatory in nature.

15. The sanctity of the Standing Order 1/89 came for consideration before the Supreme Court in Noor Aga v. State of Punjab (2008) 16 SCC 417, wherein it was held as under:-

"91. Logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution."

16. Noticing an apparent conflict between the standing order of 1988 and 1989 as the former provides for sampling at the spot of seizure and sending the same to laboratory within 72 hours whereas the latter provides for sampling before a Magistrate, the same was dealt with by the Hon'ble Supreme Court in Union of India (UOI) v. Mohanlal and Ors., (2016) 3 SCC 379. The relevant paragraphs of the said Judgment of the Hon'ble Apex Court are reproduced hereunder:

"Seizure and sampling

12. Sec. 52-A(1) of the NDPS Act, 1985 empowers the Central Government to prescribe by a notification the procedure to be followed for seizure, storage and disposal of drugs and psychotropic substances. The Central Government has in exercise of that power issued Standing Order No. 1 of 1989 which prescribes the procedure to be followed while conducting seizure of the contraband. Two subsequent standing orders one dtd. 10/5/2007 and the other dtd. 16/1/2015 deal with disposal and destruction of seized contraband and do not alter or add to the earlier standing order that prescribes the procedure for conducting seizures.

" Para 2.2 of Standing Order No. 1 of 1989 states that samples must be taken from the seized contraband on the spot at the time of recovery itself. It reads: "2.2. All the packages/containers shall be serially 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 person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot."

13. Most of the States, however, claim that no samples are drawn at the time of seizure. Directorate of Revenue Intelligence is by far the only agency which claims that samples are drawn at the time of seizure, while Narcotics Control Bureau asserts that it does not do so. There is thus no uniform practice or procedure being followed by the States or the Central agencies in the matter of drawing of samples. This is, therefore, an area that needs to be suitably addressed in the light of the statutory provisions which ought to be strictly observed given the seriousness of the offences under the Act and the punishment prescribed by law in case the same are proved. We propose to deal with the issue no matter briefly in an attempt to remove the confusion that prevails regarding the true position as regards drawing of samples.

14. Sec. 52-A as amended by Act 16 of 2014, deals with disposal of seized drugs and psychotropic substances. It reads:

"52-A.Disposal of seized narcotic drugs and psychotropic substances.?(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.

(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer in charge of the nearest police station or to the officer empowered under Sec. 53, the officer referred to in sub-sec. (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-sec. (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of?

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or

(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

(3) When an application is made under sub-sec. (2), the Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-sec. (2) and certified by the Magistrate, as primary evidence in respect of such offence."

15. It is manifest from Sec. 52-A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Sec. 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purpose of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.

16. Sub-sec. (3) of Sec. 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officerin-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.

17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Sec. 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sec. s (2) and (3) of Sec. 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.

18. Be that as it may, a conflict between the statutory provision governing taking of samples and the Standing Order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction.

19. Mr Sinha, learned Amicus Curiae, argues that if an amendment of the Act stipulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification, etc. without any loss of time. The officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior officer in writing so that there is a certain amount of accountability in the entire exercise, which as at present gets neglected for a variety of reasons. There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Sec. 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-sec. (3) of Sec. 52-A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the in effective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions."

17. The Hon'ble Supreme Court in Mohd. Muslim Vs. State (NCT of Delhi); has opined as under:

"19. A plain and literal interpretation of the conditions under Sec. 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Sec. 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Sec. 37 of the NDPS Act.

20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik : (2009) 2 SCC 624). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Sec. 37 of the Act, given the imperative of Sec. 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail."

18. The Hon'ble Supreme Court in Rabi Prakash vs. State of Odisha; SCOR/83201/2023 has held as under:

"4. As regard to the twin conditions contained in Sec. 37 of the NDPS Act, learned counsel for the respondent ? State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Sec. 37(1)(b)(ii) of the NDPS Act."

19. Admittedly, 41 kg of ganja is shown to have been recovered from the possession of the applicant. Admittedly, it is not only the applicant who was sitting in the vehicle but there were other three accused persons, therefore recovery from the vehicle is joint. The applicant is in jail since 28/3/2023, he is not having any criminal history. The commercial quantity of ganja starts from 20 kg. It also appears to be admitted that the sample which was sent to the forensic lab could not be said to be consisting only of the flowering or fruiting tops of the plant.

20. Thus prima facie I find force in the submissions of learned counsel for the applicant only for the purpose of disposal of prayer of bail of the applicant. The applicant is admittedly in jail in this case since 28/3/2023 and the trial has not started yet.

21. Thus having regard to all the facts and circumstances of the case and for reasons and law discussed herein before and also that the applicant is not having any criminal history, the satisfaction as required under Sec. 37(i)(b) of the N.D.P.S. Act stands satisfied and in the considered opinion of this Court, facility of bail may be extended to the applicant, subject to certain conditions.

22. Having regard to the overall facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is thus allowed."