Rajasthan High Court - Jodhpur

Prabhu vs Union Of India ... on 6 April, 2023

Bench: Farjand Ali

[2023/RJJD/009085]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 1141/2023

Prabhu S/o Tulsi Ram Gurjar, Aged About 36 Years, R/o Pal Ka Khera, P.s. Bassi, District Chittorgarh. (At Present Lodged In District Jail, Chittorgarh)

----Petitioner Versus Union Of India, Through CBN

----Respondent

For Petitioner(s) : Mr. kailash Khilery For Respondent(s) : Mr. K.S. Nahar, Spl. P.P. for CBN

HON'BLE MR. JUSTICE FARJAND ALI

Order

06/04/2023

The instant bail application has been filed by the petitioner

Prabhu S/o Tulsi Ram Gurjar under Section 439 Cr.P.C against the

order impugned passed by learned court below in connection with

FIR No.02/2009, registered at Police Station CBN Neemach, for

the offences under Sections 8/15 and 8/29 of NDPS Act.

Briefly stated, the facts of the instant case are that a car

was intercepted by the police at the time of 'nakabandi' on 'palana

tiraha' on 25.03.2009 at about 05:00 A.M. Upon suspicion, the

police officers searched the vehicle and during search, total 14

bags were found in the car containing a total of 372.300 kilograms

of Poppy husk which was seized by the police and the seizing

officer took two samples of 500 grams each of poppy husk from all

of the 14 bags for investigation.

Learned counsel for the petitioner submits that a false case

has been foisted against the petitioner and the mandatory

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provisions of NDPS Act have not been complied with, thus, the

complete recovery, as alleged, has been vitiated on this count

alone. Samples from each of the fourteen bags were not drawn for

testing and two samples of 500 grams each were taken from the

admixture from all the recovered contraband and were sent to

FSL. Since samples from each of the bags were not separately

sent for testing, it cannot be said with utmost certainty that each

of the bags contained contraband poppy husk and that the

quantity of the recovered contraband is 372.300 kilograms. It is

the admitted case of the prosecution that neither the petitioner

was found present at the crime scene nor any incriminating

material or contraband was recovered from his possession. He

submits that for booking an accused for the accusation of the

offence committed under Section 29 of the NDPS Act, there must

be some corroborative evidence. He have been made accused on

the strength of confessional statement made by the co-accused

during police custody which is otherwise not admissible in

evidence by virtue of Sections 25 and 26 of Indian Evidence Act.

The said disclosure statement does not come within the ambit of

Section 27 of Indian Evidence Act. He has nothing to do with the

alleged offences and no useful purpose would be served by

keeping him behind the bars.

Per contra, learned Public Prosecutor opposed the bail

application on the ground that contraband poppy husk weighing

372.300 Kilograms were recovered at the instance of co-accused

persons which was sold to him by the petitioner. The recovered

contraband poppy husk is way above the demarcated commercial

quantity.

[2023/RJJD/009085] (3 of 7) [CRLMB-1141/2023]

Heard. Perused the material available on record. Upon

consideration of the submissions made on behalf of the petitioner

and the law applicable in the matter, this court is of the opinion

that it cannot be ascertained beyond any measure of doubt that

the recovered contraband was above the commercial quantity as

the samples of contraband were not collected individually from the

fourteen bags for investigation.

No presumption is available that the other bags also

contained contraband. Since the doctrine of beyond reasonable

doubt is applicable in criminal matters, therefore, even the initial

duty lies upon the prosecution to show that the petitioner was

having contraband in all the bags. This court is of the opinion that

it cannot be ascertained beyond any measure of doubt that the

recovered contraband was above the commercial quantity as the

samples of contraband were not collected individually from the

fourteen bags for investigation.

This court has passed a detailed order in this context in S.B.

Criminal Misc. 3rd Bail Application No. 1162/2022; Ramchandra

v. State of Rajasthan, wherein the rules pertaining to sample

collection contained in Standing Order No. 1/1989 dated

13.06.1989 issued by Government of India under Section 52A of

NDPS Act have been enumerated inter alia other aspects. The

relevant part of the said order is as under:-

"4. Heard learned counsel for the petitioner and learned public prosecutor. Perused the material available on record. The argument that collection of samples was not proper and in accordance with the procedure of sampling as per Standing Order No. 1/1989 seems to be worth considering. Clause 2.1 to

[2023/RJJD/009085] (4 of 7) [CRLMB-1141/2023]

2.8 of the Violation Order/ Instruction No.1 of 1989 dated 13.6.1989 issued by the Government of India under Section 52 A of N.D.P.S. Act are of relevance to the present set of facts and are as follows: 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

[2023/RJJD/009085] (5 of 7) [CRLMB-1141/2023]

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 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. In simple words, if there were eight plastic bags marked A, B, C,...., H that allegedly contained contraband, then eight separate representative samples from each plastic bag marked A1, B1, C1,...., H1 respectively and eight separate representative samples as control samples from each plastic bag marked A2, B2, C2,....,H2 respectively should have been collected for investigation. It is an act of utmost recklessness and irresponsibility that even after collecting separate samples from each of the eight bags, the samples were again mixed together and submitted for investigation as one admixture. Since the samples were not collected in an accurate manner and the possibility of there being no contraband in any one or more of the eight bags cannot be obviated, the contraband can be assumed to be below commercial quantity and the embargo contained under Section 37 of the NDPS Act is not attracted."

For instance, if the fourteen bags were allegedly recovered

from the principal and only three plastic bags were having

contraband substance and rest of the eleven plastic bags did not

have any contraband; though all maybe of same colour, when we

[2023/RJJD/009085] (6 of 7) [CRLMB-1141/2023]

mix the substances of all the fourteen bags into one or two; then

definitely, the forensic result would as such test in the affirmative

for whole of the quantity when in fact, contraband was only

contained in three bags. The alleged ceased contraband contained

in each single bag weighed well below commercial quantity and

since it cannot be established that each of the bags were filled

with the alleged contraband, therefore, the embargo contained

under Section 37 of NDPS Act would not be attracted.

The Privy Council in the case of Pulukuri Kotayya Vs.

Emperor reported in AIR (1947) PC 67 discussed the provision

stipulated under Section 27 of the Indian Evidence Act. The

relevant portion of the judgment is reproduced herein as under:

"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A'., these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."

The observations of the Privy Counsel in the case of

Pulukuri Kotayya (supra) stand accepted by Hon'ble the

[2023/RJJD/009085] (7 of 7) [CRLMB-1141/2023]

Supreme Court in the case of Prabhoo Vs. State of Uttar

Pradesh, reported in AIR (1963) SC 113 and then, it has been

reiterated/referred in a catena of legal pronouncements.

In light of the above observations and looking to the overall

facts and circumstances of the case and the dicta contained in the

judgment passed in Ramchandra (supra) and Pulukuri Kotayya

(supra), this court deems it just and proper to enlarge the

petitioner on bail.

It is to be made clear, in unambiguous terms, that the effect