Madhya Pradesh High Court

Lal Singh vs Union Of India on 28 April, 2022

Author: Deepak Kumar Agarwal

                                                                    01

         THE HIGH COURT OF MADHYA PRADESH
                        MCRC-19745/2022
                   (Lal Singh Vs.Union of India)

Gwalior, Dated: 28.04.2022
      Shri Rajmani Bansal, learned counsel for applicant.

      Shri Praveen Newaskar, learned ASGI for respondent/UOI.

This is first application under Section 439 CrPC filed by the

applicant for grant of bail.

Applicant has been arrested on 04.09.2021 by Police Station,

Central Narcotics Bureau Gwalior (MP), in connection with Crime

No.03/2021 for the offence punishable under Section 8/15, 25, 29 of the

NDPS Act.

Prosecution story, in short, is that on 04/09/2021, CBN

Inspector Gwalior received an information and on that information,

about 232.180 Kgs. of Poppy Straw (Donda Chura) in twenty sacks

were found in the house of accused- Lal Singh in the presence of

independent witnesses- Raju and Vijay. Due to crowd on the spot,

seizure could not be done there and CBN Inspector brought the

aforesaid contraband goods in his Narcotics Office, Gwalior, where

he seized the aforesaid contraband from the possession of applicant

Lal Singh. Sample was drawn and present applicant was arrested and

statement was recorded in which he stated that the aforesaid

contraband was brought by his son Omprakash Rajput @ Banti who

is indulged in the business of Narcotics products. On the basis of

aforesaid, crime has been registered against him.

From the accused total 226.870 KG poppy straw was seized from 10

packets and the packets were marked as A to M. From Packet A to J total

200 KG Poppy straw was found and by mixing the same two samples 250-

250 gms of poppy straw were took out, from Packet K 20.420 kg poppy

straw, from packet L 6.450 kg poppy straw and from packet M 5.310 kg

poppy straw was found. Thereafter, a crime under the aforesaid offence

was registered. After investigation, charge sheet has been filed.

From the side of applicant-accused it has been submitted that

investigating agency committed gross negligence during investigation

because before taking sample of each packets, they mixed the

contraband kept in 13 packets. Infact they had to take sample from

each packets. In support of their contention learned counsel for

applicant-accused has relied on judgment passed by High Court of

Judicature For Rajasthan At Jodhpur in CrLMB 5643/2019

(Laal Singh Vs. State of Rajasthan) on 16.05.2019 in which the

same facts were taken into consideration. In that case SHO Police

Station Arnod District Pratapgarh seized 1264 kg and 800 gm poppy

husk contained in 57 bags. Seizure Officer first mixed all the poppy

husk contained in 57 bags, on a tarpaulin and thereafter took two

samples of 1 kg from bag No.1.

The Apex Court in Netram Vs. State of Rajasthan reported

in 2014 (1) CrLR (Raj.) 163 has held that if the samples from each

bag containing poppy husk/poppy straw have not been collected and

test by U.N.Kit has not been conducted on each bag and if the Seizure

Officer has taken out some quantity of narcotic drug from each bag

and after mixing the same has taken out some portion for sample,

then, the same is not in conformity with the Standing Instruction

No.1/88 issued by the Narcotics Control Bureau, New Delhi,

particularly, Instruction No.1.7 and, as such, it cannot be said that the

narcotic contraband recovered in the matter is of commercial quantity

or above.

Learned counsel for applicant has also relied upon Criminal

Misc. Bail Application No. 9660/2021 (Omprakash Verma Vs.

State of UP) passed by High Court of Judicature at Allahbad,

Lucknow Bench wherein para 6 and 11 it has been held:-

6. Learned counsel for the applicant has submitted that the general procedure for sampling provided in Standing Order No. 01 of 1989 dated 13.06.1989 has not been complied by the opposite party. He has relied upon clause 2.1 to 2.8 of the aforesaid standing order quoted herein below :-

"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 4 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."

11. The Apex Court in case of Noor Aga v. State of Punjab (2008) 16 SCC 417 , has held in paragraphs 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 arresting 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, visa- 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 therefore, it becomes obligatory on the part of the sub ordinate authorities to comply therewith.

(124) Recently, this Court in State of Kerala & Ors. v. Kurian Abraham (P) Ltd. & Anr.3 , following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan4 , held that statutory instructions are mandatory in nature. (125) Logical corollary of these discussions is that the guidelines such as those present in the Standing Order can not 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 interference against them to the effect that had such evidence been produced, the same would have gone against the prosecution."

The Apex Court in Noor Aga (supra) has held that standing

order 01/1989 is obligatory on the part of subordinate authorities to

comply therewith. in the aforesaid case in hand seizure officer while

taking samples has not followed the aforesaid standing order. In the

aforesaid case in hand seizure officer while taking samples has not

followed the aforesaid standing orders. In both these cases Lucknow

Bench of Allahbad High Court and High Court of Judicature For

Rajasthan At Jodhpur had granted bail to the applicant.

Looking to the aforesaid facts and circumstances of the case

and the aforesaid legal assertion, this Court is of the opinion that the

application should be allowed and by allowing the application it is

ordered that if the applicant furnishes cash security of Rs.50,000/-