Madhya Pradesh High Court
Smt Soniya vs The State Of Madhya Pradesh on 3 January, 2023
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 3 rd OF JANUARY, 2023
MISC. CRIMINAL CASE No. 36271 of 2022
BETWEEN:-
SMT SONIYA W/O SAGAR ARORA, AGED ABOUT 29
YEARS, RESIDENT OF B 88 VISHWKARMA COLONY M B
MARG BADARPUR SOUTH (DELHI)
.....APPLICANT
(BY SHRI ABHISHEK SHARMA- ADVOCATE )
AND
THE STATE OF MADHYA PRADESH INCHARGE POLICE
STATION PS NOORABAD DISTRICT MORENA (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI KOUSHLENDRA SINGH- PUBLIC PROSECUTOR )
This application coming on for hearing this day, the court passed the
following:
ORDER
This is the sixth bail application u/S.439 Cr.P.C filed by the applicant
for grant of bail. Earlier applications were dismissed as withdrawn.
Applicant has been arrested on 16-07-2021 by police Station,
Noorabad, Distt. Morena, in connection with crime No.161/2021 for the
offence punishable under Section 8/20 of the NDPS Act.
As per prosecution story, on 16.7.2021 on the secret information
police Noorabad seized 82 kg cannabis (Ganja) from the joint possession
of applicant and co-accused Arjun Jatav and Pavan from Hundai vehicle.
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 04-01-2023
02:13:38 PM
Cannabis was kept in 38 packets. All the packets were opened. Material
kept in 38 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 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 38 packets which is
violation of mandatory provision of guidelines issued under NDPS Act.
Therefore, she should be released on bail.
From the side of applicant-accused, it has been further submitted that
investigating agency committed gross negligence during investigation
because before taking sample of each packets, they mixed the contraband
kept in 38 packets. In fact, they had to take sample from each packets. In
support of 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
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 04-01-2023
02:13:38 PM
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 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
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 04-01-2023
02:13:38 PM
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
Signature Not Verified
package/container.
Signed by: MAHENDRA
BARIK
Signing time: 04-01-2023
02:13:38 PM
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
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., following
the earlier decision of this Court in Union of India
v. Azadi Bachao Andolan, 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
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 04-01-2023
02:13:38 PM
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 also submits that applicant has been
falsely implicated in the case. She is in custody since 16.7.2021. The
applicant undertakes to cooperate in investigation/trial. Conclusion of trial
will take time. It is further submitted that co-accused Pavan has been
enlarged on bail by this Court vide order dated 20th of June, 2022 passed
in MCRC No. 28414 of 2022. 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 as well as maintaining the parity, 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.25,000/- 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, she should be released on bail.
The applicant will present during trial before the trial Court on each
and every date. In case of any default, cash security of Rs.25,000/- shall
be forfeited without giving any notice.
Application stands allowed and disposed of.
Certified copy as per rules.
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 04-01-2023
02:13:38 PM
(DEEPAK KUMAR AGARWAL)
JUDGE
MKB
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 04-01-2023
02:13:38 PM
