Ganpat vs State Of Rajasthan ...
2023 Latest Caselaw 2069 Raj

[2023/RJJD/006173] (1 of 6) [CRLMB-930/2023]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 4th Bail Application No. 930/2023 Ganpat S/o Gopi Banjara, Aged About 28 Years, R/o Jhikariya Rundi Malkheda, P.s. Mansa, District Nimach (M.p.) (At Present Lodged In District Jail, Chittorgarh)

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. Pankha Bai Banjara, wife of the petitioner, present in person.

For Respondent(s)         :     Mr. Javed Gauri, PP


           HON'BLE MR. JUSTICE FARJAND ALI
                             Order
02/03/2023

Lawyers are abstaining from appearing before the court.

The instant bail application has been filed by the petitioner

Ganpat S/o Gopi Banjara under Section 439 Cr.P.C against the

order impugned passed by learned court below in connection with

FIR No.91/2019, registered at Police Station Parsoli, District

Chittorgarh, for the offences under Sections 8/15 of NDPS Act.

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

driven by the accused-petitioner; which was intercepted by the

police at the time of 'nakabandi' on Highway Road, Bichhor on

11.07.2019 at about 12:30 P.M. Upon suspicion, the police officers

searched the vehicle and during search, total seven bags of poppy

husk were found in the car containing a total of 191 kilograms of

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

took 500 grams of poppy husk from each bag for sampling

respectively; all the samples of 500 grams each collected from

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separate bags were mixed together in a single bag and thereafter,

two samples of 500 grams each were taken from the aforesaid

admixture of 3.5 kilograms.

The wife of the petitioner is present in person before this

court and she submits that a false case has been foisted against

the petitioner and the mandatory 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 seven

plastic bags were drawn for testing, however, those samples were

mixed together and thereafter, two samples of 500 grams each

were sent for 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 191 kilograms.

Per contra, learned Public Prosecutor opposes the bail

applications on the ground that the recovered contraband weighed

191 kilograms in total and that is way above the commercial

quantity demarcated for poppy husk.

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

seven plastic bags for investigation.

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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. If samples taken from all the

bags and then the collected samples are mixed together and then

one sample is taken from the admixture, the same sample cannot

be a representative of all the other bags and it cannot be

ascertained beyond reasonable doubt that the other bags also

contained contraband on the basis of presumption.

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 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

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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 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

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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."

Since it cannot be established that each of the bags was

filled with the alleged contraband amounting to commercial

quantity, thus, the possibility that the alleged ceased contraband

contained in each single plastic bag weighed well below

commercial quantity cannot be ruled out, therefore, the embargo

contained under Section 37 of NDPS Act would not be attracted.

The seven plastic bags were weighed separately and as the

samples were wrongly collected, the quantity of the seized

contraband can be assumed to be less than commercial quantity

and the impediment as stipulated in Section 37 of the NDPS Act

will not be applicable in the present case. For instance, if the

seven plastic bags were allegedly recovered from the principal and

only two plastic bags were having contraband substance and rest

of the five plastic bags did not have any contraband; though all

maybe of same colour, when we mix the substances of all the

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seven jute 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 two bags. The

alleged ceased contraband contained in each single plastic 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.

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), 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

of this order is limited to the justifiable disposal of the present bail

application and shall not influence the learned trial judge in

reaching a conclusion at the culmination of the trial.

Accordingly, the 4th bail application under Section 439 Cr.P.C.

is allowed and it is ordered that the accused-petitioner named

above shall be enlarged on bail provided he furnishes a personal

bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/-

each to the satisfaction of the learned trial Judge for his

appearance before the court concerned on all the dates of hearing

as and when called upon to do so.

(FARJAND ALI),J 83-Ashutosh/-

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