Praveen Kumar vs The State Of Madhya Pradesh
2023 Latest Caselaw 2591 MP

                                                            1
                             IN    THE      HIGH COURT OF MADHYA PRADESH
                                                  AT GWALIOR
                                                     BEFORE
                                  HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                              ON THE 13 th OF FEBRUARY, 2023
                                           MISC. CRIMINAL CASE No. 7128 of 2023

                            BETWEEN:-
                            PRAVEEN KUMAR S/O SHRI J. BHAGWAN JODULE,
                            AGED 42 YEARS, R/O POLICE STATION JOHARNAGAR
                            PESH THANA MIRCHAL DISTRICT HYDERABAD
                            (ANDHRA PRADESH)

                                                                                        .....APPLICANT
                            (BY SHRI YASH SHARMA - ADVOCATE)

                            AND
                            THE STATE OF MADHYA PRADESH INCHARGE POLICE
                            STATION THROUGH POLICE STATION CIVIL LINES
                            DISTRICT MORENA (MADHYA PRADESH)

                                                                                      .....RESPONDENT
                            (BY SHRI B.P.S. CHAUHAN - PUBLIC PROSECUTOR )

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

This is third bail application u/S.439 Cr.P.C filed by the applicant for grant of bail. Earlier bail applications filed by present applicant were dismissed as withdrawn by the coordinate Bench.

Applicant has been arrested on 17.03.2021 by police Station, Civil Line, Distt. Morena, in connection with crime No.121/2021 for the offence punishable under Section 8/20 of the NDPS Act.

As per prosecution story, on 17.03.2021 on the secret information police Civil Line, Morena seized 60 kg 500 gm cannabis (Ganja) from the Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 2/14/2023 3:18:35 PM

joint possession of applicant Praveen Kumar and co-accused Mahesh and Sayeed Salman from Hundai vehicle. Cannabis was kept in 31 packets. All the packets were opened. Material kept in 31 packets was taken out from the packets and made homogeneous in a plastic sheet. Thereafter sample was taken. Accused persons were arrested and crime for the aforesaid offence was registered.

From the side of applicant/accused, it is submitted that mandatory provision of NDPS Act has not been followed. Sample was taken after mixing 31 packets which is violation of mandatory provision of guidelines issued under NDPS Act. Therefore, applicant should be released on bail.

F r o m 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 31 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 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

Signature Not Verified U.N.Kit has not been conducted on each bag and if the Seizure Officer has Signed by: VIJAY TRIPATHI Signing time: 2/14/2023 3:18:35 PM

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 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 Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 2/14/2023 3:18:35 PM

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 Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 2/14/2023 3:18:35 PM

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 de pa r tme nta l 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 l e g a l 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 Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 2/14/2023 3:18:35 PM

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 17.03.2021. He undertakes to cooperate in investigation/trial. Conclusion of trial will take time. On such premises, learned counsel for the applicant prayed for bail.

Learned counsel for the State opposed the prayer and prayed for dismissal of the application.

Both the Advocates are heard. Case diary perused.

Looking to the facts and circumstances of the case, but without commenting on 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 applicant furnishes cash security of Rs.50,000/- along with bail bond of Rs.50,000/- (Rupees Fifty 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.50,000/- shall be forfeited without giving any notice.

Before parting with the case, this Court experience that besides seizing Police Officer in Morena Police Station, SHO, DSP, Additional SP and Superintendent of Police and Chambal Range IG have been posted to supervise the investigation of their inferiors, but their duty is only to supervise the investigation done by their inferiors. But, to my utter surprise, aforesaid officials are not discharging their duties as they should Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 2/14/2023 3:18:35 PM

owing to their negligence in commercial quantity cases of drugs. Courts are forced to release the accused on bail. This inaction of the superior Officers should be depreciated.

A copy of this bail order be sent to the Director General of Police, Bhopal (M.P.) for information and necessary action.

Application stands allowed and disposed of. Certified copy as per rules.

(DEEPAK KUMAR AGARWAL) JUDGE Vijay

Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 2/14/2023 3:18:35 PM