Dinesh vs The State Of Madhya Pradesh
2022 Latest Caselaw 7111 MP

                                    1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT GWALIOR
                                 BEFORE
              HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                            ON THE 11th OF MAY, 2022

                MISC. CRIMINAL CASE No. 23506 of 2022

         Between:-
         DINESH S/O DHEERAP SINNGH MEENA , AGED
         ABOUT 23 YEARS, OCCUPATION: AGRI. VILL.
         MOHAMMAD PUR MOGA PS MRIGWAS TEH.
         CHACHODA (MADHYA PRADESH)

                                                                  .....APPLICANT
         (BY SHRI RAJMANI BANSAL - ADVOCATE )

         AND

         THE STATE OF MADHYA PRADESH INCHARGE
         POLICE STATION P.S. CHACHODA (MADHYA
         PRADESH)

                                                               .....RESPONDENTS
         (BY SHRI B.P.S. CHOUHAN - PUBLIC PROSECUTOR)

       This application coming on for admission this day, the court passed the
following:
                                     ORDER

This is the first bail application u/S 439 of Cr.P.C. filed by the applicant

for grant of bail.

T h e applicant was arrested on 13.03.2022 in connection with Crime No.405/2021 by Police Station Chachoda, District Guna (MP) for the offence punishable under Sections 8/20 of NDPS Act.

In brief, prosecution case is that on 30.09.2021 Sub Inspector of Police Station Chachoda, District Guna, Shri Bundel Singh Suneriya, Incharge, got a secret information that one Dinesh S/o Dheraj Singh, resident of Mohamadpura from Mrigwas side on Delux Motorcycle No.M.P. MX 3606 along with one

person coming with large quantity of cannabis (ganja). He has kept contraband in a suit case and going towards Biyavra. He intimated the information in Rojnamcha and alongwith the Police force and investigating material reached on the spot. He saw two persons were coming by motorcycle having big suitcase where going towards Guna. After their chase, they could not be caught hold after parking their motorcycle and throwing the suitcase, they ran away towards the forest. They were chased. The person driving the motorcycle was identified by his team Constable Shivpratap and punch one Arpit Vyas that he was applicant/accused Dinesh Meena, resident of Mohamadpura. Second person sitting as a pillian rider could not be identified but they could not caught

hold on at the place of occurrence. On opening the suitcase, 23 packets were found. He opened one packet. Smell of cannabis was coming out. Aforesaid cannabis and motorcycle were seized. Through registration of motorcycle, one of the accused was identified as Dinesh, the present applicant. From 23 packets of cannabis material ket in those packets were taken out in a big plastic bag. All materials kept in 23 packets were made homogeneous. Thereafter, sample 100-100 was taken on waiving quantity of cannabis was found to 22 kg. which is commercial quantity. After going investigation on the side, Sub Inspector came to Police Station Chachoda, District Guna and register an offence against the owner of aforesaid motorcycle M.P.MX 3606 which is present applicant/accused Dinesh under Section 8/20 of NDPS Act. Aforesaid seized sample was reported as cannabis. Investigation was conducted. Applicant/accused was arrested after six months on 13.03.2022. In case diary, charge-sheet has been annexed which shows that investigation has been completed.

From the side of applicant/accused, it is submitted that on the date of

occurrence of offence alleged contraband has not been seized from the possession of applicant/accused. Mandatory provision of NDPS Act has not been followed. Sample was taken after mixing four materials in one bag which is violation of mandatory provision of guidelines issued under NDPS Act. Therefore, he should be released on bail.

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 23 packets. In fact they had to take sample from each packets. In support of their contention learned counsel for applicant-accused has relied on judgment passed b y 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 the applicant placed a reliance upon Criminal Misc. Bail Application No.9660/2021 (Omprakash Verma Vs. State of UP) passed by High Court of Judicature at Allahabad, 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:-

œ(123) Guidelines issued should not only be substantially complied, but also in a case involving penal proceedings, visavis 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.

Learned counsel for the applicant submits that applicant has been falsely implicated in the case. He is in custody since 19.03.2022. He undertakes to cooperate in trial. Conclusion of trial will take time. On such premises, learned counsel for the applicant prayed for bail. Learned Public Prosecutor admits that besides this no other incriminatory evidence is available.

Both the Advocates are heard. Case diary perused.

Looking to the aforesaid facts and circumstances of the case, without commenting upon the merits of the case, 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.1,00,000/- along with bail bond of Rs.25,000/- (Rupees twenty five thousand only) with one solvent surety in the like amount to the satisfaction of the trial Court, he should be released on bail. He will present during trial before the trial Court on each and every date. In case of any default, cash security of Rs.1,00,000/- shall be forfeited without giving any notice.

Application stands allowed and disposed of. Copy of this order be sent to the trial Court concerned for compliance.

Before parting with the case this Court depreciated the investigation done by Seizing Officer Sub Inspector Bundel Singh Suneriya without following the aforesaid mandatory provision of the Act.

Copy of this order be sent to Superintendent of Police Guna and Inspector General of Police, Gwalior, for future guidance and necessary action.

Certified copy as per rules.

(DEEPAK KUMAR AGARWAL) JUDGE mani

SUBASRI MANI 2022.05.12 11:18:26

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