Rajasthan High Court - Jodhpur

Aziz Khan vs State Of Rajasthan ... on 4 May, 2023

Bench: Kuldeep Mathur

[2023/RJJD/013627]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 2787/2023

Aziz Khan S/o Shri Abdul Hamid, Aged About 38 Years, R/o Ward No. 24 Nearby Mining Office Chittorgarh Dist. Chittorgarh (Lodged In Sub Jail Nohar)

----Petitioner Versus State Of Rajasthan, Through P.P.

----Respondent

For Petitioner(s) : Mr. Bhagirath Ray Bishnoi. For Respondent(s) : Mr. S.K. Bhati, P.P.

HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

04/05/2023

This application for bail under Section 439 Cr.P.C. has been

filed by the petitioner who has been arrested in connection with

F.I.R. No.10/2020, registered at Police Station Pallu, District

Hanumangarh, for offences under Sections 8/18 & 8/29 of the

NDPS Act.

Heard learned counsel for the petitioner and learned Public

Prosecutor. Perused the materials available on record.

Learned counsel for the petitioner submitted that similarly

situated co-accused namely Imran has already been enlarged on

bail by a coordinate Bench of this Court vide order dated

13.03.2023 in Criminal Miscellaneous Bail Application

No.15955/2022, and the case of present petitioner is not

distinguishable from that of the co-accused. The petitioner is in

judicial custody and the trial of the case will take sufficiently long

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time, therefore, the benefit of bail should be granted to the

accused-petitioner. For ready reference, the order dated

13.03.2023 is reproduced herein below:-

"Lawyers are abstaining from appearing before the Court.

The instant bail application has been filed by the petitioner Imran S/o Shri Ahateshamdin under Section 439 Cr.P.C against the order impugned passed by learned court below in connection with FIR No.10/2020, registered at Police Station Pallu, District Hanumangarh, for the offences under Sections 8/18 and 29 of NDPS Act.

Briefly stated, the facts of the instant case are that a car driven by the accused-petitioner; was intercepted by the police at the time of 'nakabandi' on Highway Road, Sardarshahar on 21.01.2020 at about 12:05 P.M. Upon suspicion, the police officers searched the vehicle and during search, total two polythene bags of opium were found in the car containing a total of four kilograms of opium which was seized by the police and the seizing officer took two samples of 50 grams each of opium from one bag for sampling but sent only one sample for testing.

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 two polythene bags were not drawn for testing, two samples of 50 grams each were sent for FSL from one polythene bag only. 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 opium and that the quantity of the recovered contraband is four kilograms. As per the FSL report, only one sample of 32.79 grams was sent for testing by the seizing officer.

Per contra, learned Public Prosecutor opposes the bail applications on the ground that the recovered contraband weighed four kilograms in total and that is way above the commercial quantity demarcated for opium.

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Heard. Perused the material available on record. The prosecution witness PW-1 Mahendra Kumar who made seizure of contraband has in an unambiguous manner; accepted in the evidence that several small polythene bags were contained in two big polythene bags and he took one sample from the seized material. It is observed that no separate sample from each bag was taken, therefore, the possibility cannot be ruled out that one of the polythene bags may be filled with contraband and rest may be filled with neutral substances.

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 polythene 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 two polythene bags for investigation.

It is worth considering that out of the two samples collected for testing, only one sample was sent to FSL and even the sample that was sent did not weigh 50 grams as stated by the seizing officer when he was examined as PW-1 in trial. The discrepancy in the weight of the sample puts doubt on the case of the prosecution. Further it is highly suspicious that how many polythene bags were there and why the sample was taken from one bag only.

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

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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 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

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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."

Since it cannot be established that each of the polythene was filled with the alleged contraband amounting to commercial quantity, thus, the possibility that the alleged seized contraband contained in each single polythene 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 two polythene were not 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 polythene bags were

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allegedly recovered from the principal and only one polythene was having contraband substance and rest of the polythene bags did not have any contraband; though all maybe of same colour, when we mix the substances of all the material contained in polythene bags into one or two; then definitely, the forensic result would as such test in the affirmative for whole of the quantity when may be the, contraband was only contained in one container. The alleged seized contraband contained in each single small polythene weighed well below commercial quantity and since it cannot be established that each of the polythene 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 bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner Imran S/o Shri Ahateshamdin 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."

Learned Public Prosecutor has opposed the bail application.

However, he is not in a position to refute that the case of present

petitioner is not distinguishable from that of the co-accused who

has been enlarged on bail.

Having considered the rival submissions, facts and

circumstances of the case, without expressing any opinion on

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merits/demerits of the case, this Court is of the opinion that the

bail application filed by the petitioner deserves to be accepted.

Consequently, the bail application under Section 439 Cr.P.C.

is allowed. It is ordered that the accused-petitioner Aziz Khan

S/o Shri Abdul Hamid arrested in connection with F.I.R.