Punjab-Haryana High Court
Poonam Devi Rao vs State Of Punjab on 31 August, 2022
CRM-M-32287-2021 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CRM-M-32287-2021
Date of Decision: 31.8.2022
Poonam Devi Rao
....Petitioner
VERSUS
State of Punjab
....Respondent
CORAM:- HON'BLE MR. JUSTICE KARAMJIT SINGH
Present: Mr. Ruhani Chadha, Advocate
for the petitioner.
Mr. Mohinder Singh Joshi, Addl. AG, Punjab.
*******
KARAMJIT SINGH, J.
The present petition has been filed under Section 439 Code of
Criminal Procedure for grant of regular bail to the petitioner in case FIR
No.2 dated 6.1.2021 registered for the offences punishable under Sections
18, 25, 61 of NDPS Act at Police Station Cantt, Jalandhar City, District
Jalandhar.
Counsel for the petitioner submits that as per allegations
appearing on the record, 26 polythene bags each containing Opium were
recovered from the stepney of the Tata Sumo No.JH 05 AP 8743 in which
the petitioner, Krishna Rao and Raja Kumar were traveling. He further
submits that as per prosecution version, the aforesaid Opium on weighment
came out to be 26 kg 110 grams. He further submits that it has also been
recorded in the FIR that the said Opium weighing 26 kg 110 grams which
was there in 26 polythene bags was collected in one plastic drum of blue
colour and then the samples were separated and those samples were sent for
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analysis to the concerned Laboratory. He further contends that even in the
reply filed by way of affidavit of Ravinder Singh, Assistant Commissioner
of Police, Sub Division V, Cantonment, Jalandhar on behalf of the State, it
has been specifically stated that 26 polythene bags containing Opium were
recovered and on weighment, total Opium came out to be 26 kg 110 grams
and the said Opium was put in blue colour drum and thereafter, the samples
were separated.
Counsel for the petitioner submits that the aforesaid sampling
procedure followed by the police was totally wrong and actually, the
samples from each polythene bag should have been taken for the purpose of
their chemical examination. He further submits that on this sole ground, the
entire recovery proceedings stands vitiated. He further contends that even
otherwise, the petitioner who is a lady is in custody for the last about 1 year
and 8 months and the trial is going at a snail's space and as such, prayer is
made for grant of regular bail to the petitioner.
In suport of his contentions, counsel for the petitioner referred
to judgment dated 13.3.2020 passed in Criminal Appeal No.1027 of 2015
titled Amani Fidel Chris v. Narcotics Control Bureau wherein Delhi
High Court while dealing with a case under NDPS Act where samples were
drawn after breaking small pieces from 8 polythene bags and the
Investigating Officer prepared two samples of 25 grams each, observed that
if it is not practically possible to send the entire quantity, then sufficient
quantity by way of samples from each of the packets of pieces recovered
should be sent for chemical examination, otherwise the result thereon may
be doubted.
The present petition is resisted by the State counsel who
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submits that the present case involves recovery of more than 26kg of Opium
which was recovered from the vehicle in which the petitioner was traveling
along with two other persons. State counsel further submits that the samples
in this case were collected properly by the police officials in accordance
with law and the said samples were sent to concerned Laboratory in sealed
parcels and on examination, they were found to be that of Opium. He further
submits that the trial is in progress and at this stage, no ground is made out
to grant bail to the petitioner.
I have considered the submissions made by the counsel for the
parties.
As per allegations appearing on the record, 26 polythene bags
containing Opium were recovered from the vehicle in which the petitioner
was traveling along with Krishna Rao and Raja kumar. From the perusal of
the FIR as well as the reply filed by the State in the shape of affidavit of
Ravinder Singh, Assistant Commissioner of Police, Sub Division V,
Cantonment, Jalandhar, it transpires that on weighment, the said Opium
came out to be 26 Kg 110 grams and the same was put in blue colour drum
and thereafter, the samples were collected. In FIR, there is no mention that
the contents of 26 polythene bags which were put in blue colour drum, were
thoroughly mixed and the mixture was made homogenous and thereafter,
the representative samples were collected out of the said homogenous
mixture. Even in the reply filed in the shape of affidavit of Ravinder Singh,
Assistant Commissioner of Police, Sub Division V, Cantonment, Jalandhar,
it is not so mentioned. So, apparently, it appears that the
substance/contraband which was recovered from 26 polythene bags after it
was removed from the said polythene bags, was not made homogenous by
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mixing it properly so as to collect the representative samples from the same.
Further standing order No.1/88 dated 15.3.1988 issued by NCB in its para
No.1.7, provides that number of samples to be drawn in each seizure case.
In the case of seizure of single package/container, one sample in duplicate is
to be drawn and normally it is advisable to draw one sample in duplicate
from each package/container in case of seizure of more than one
package/container.
So, in light of the judgment in Amani Fidel Chris's case
(supra) which has been relied upon by the counsel for the petitioner and the
aforesaid standing order, this Court is of the view that apparently, the proper
procedure was not followed by the police while separating samples, as by
mixing contents of 26 polythene bags before drawing any sample, the
original sanctity of the case property in individual polythene bags was lost.
Further the prosecution has failed to clarify as to how much each polythene
bag was weighing.
As per custody certificate furnished by the State counsel, the
petitioner is in custody for the last more than one year and seven months
and is not involved in any other case under NDPS Act. Further, there is
nothing on record to show that the petitioner is likely to commit any such
offence in future while on bail.
As has been contended by the counsel for the petitioner that
proper procedure has not been followed by the Investigating Officer while
separating samples in the present case, the veracity of the prosecution case
against the petitioner comes under doubt. So, parameters of bail available
under Section 37 of NDPS Act appear to have been satisfied in the present
case.
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Consequently, without expressing any opinion on the merits of
the case, the present petition is allowed and the petitioner is ordered to be
released on bail subject to his furnishing bail bonds/surety bonds to the
satisfaction of the trial Court/Chief Judicial Magistrate/Duty Magistrate
concerned.
( KARAMJIT SINGH )
JUDGE
August 31, 2022
Paritosh Kumar
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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