Delhi HC releases 2 men convicted under NDPS Act due to non-compliance of manner of sampling of seized narcotic substances prescribed in Standing Orders
Justice Navin Chawla [25-01-2024]

Read Order: SANDEEP @ CHIKU AND ORS v. STATE (NCT OF DELHI)

LE Correspondent

New Delhi, January 29, 2024: In a case pertaining to the NDPS Act where the prosecution emptied all the packages that were recovered from the trolley bag of the accused persons into one composite whole and thereafter, samples from such composite whole were drawn before the Metropolitan Magistrate, the Delhi High Court has allowed the bail plea of the two accused persons as the sampling procedure was not in conformity with the terms of the Standing Orders no.1/88 and 1/89.

It was the case of the prosecution that, on 31.10.2022 a police party found two boys holding a trolley bag and a backpack. On seeing the police, the boys started moving towards Dayabasti. On suspicion, their luggage was checked and a total of 12 packets each were recovered from the possession of each of them.Prosecution alleged that these 12 packets were containing dark greenish leaves and seeds, which were looking and smelling like Ganja/Marijuana. From Sandeep @ Chiku, the total quantity recovered was 24kg and 450 grams, while from Vineet, the total quantity recovered was 24kg and 200 grams.

An application was thereafter filed before the Metropolitan Magistrate for carrying out sampling and seizure process under Section 52A(2) of the NDPS Act. As per the Order, it was reflected that while seizing the substance recovered from the trolley bag carried by accused Sandeep @ Chiku, 8 brown packets which were recovered had been emptied into a green polythene and mixed all together. From this mixed quantity, samples were drawn. Similarly, the substance recovered from 4 brown packets that were being carried by accused Sandeep in a backpack had again been mixed together and kept in a green polythene. It was from this mixed quantity that samples were drawn before the learned Metropolitan Magistrate. The same procedure had been followed for the accused Vineet.

The applications in question had been filed under Section 439 of the Code of Criminal Procedure, 1973 by the accused persons seeking to be released on regular bail under Sections 20/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Sections 147/149 of the Railways Act, 1989.

It was the case of the applicants that the sampling procedure followed by the prosecution was in violation of the Standing Order No.1/88 dated 15.03.1988 issued by Narcotics Control Bureau, and the Standing Order no.1/89 dated 13.06.1989 issued by the Department of Revenue, Ministry of Finance, Government of India. The applicants had also placedreliance on Laxman Thakur v. State (Govt. of NCT of Delhi),Amina v. State NCT of Delhi to submit that this Court had, in cases where the sampling procedure followed by the prosecution was not in conformity with the above mentioned Standing Orders, released the accusedon bail.

On the contrary, the State counsel submitted that the purpose of Section 52A of the NDPS Act is for the disposal of the case property after making inventory and keeping the samples of seized contraband. It is for the purpose of keeping representative samples for being exhibited during the course of the trial as primary evidence. It was further stated that the Standing Orders No.1/88 and 1/89 are merely advisory in nature and not mandatory. Their non–compliance is neither fatal to the case of the prosecution nor does it entitle the accused to be released on bail.

The Single-Judge Bench of Justice Navin Chawla, at the oustet, referred to Section 52 of the NDPS Act which mandates that the authority or officer to whom any person or article is forwarded under that Section, shall, with all convenient despatch, take such measures as may be necessary for the disposal of such person or article.

The Bench explained that a reading of Sub-Section 2 of Section 52A read with Section 52 of the NDPS Act would show that where any narcotic drugs and psychotropic substances, controlled substance or conveyances are seized, they shall, without unnecessary delay, be forwarded to the Magistrate by whom warrant was issued or to the Officer-In-Charge of the nearest Police Station or to the Officer empowered under Section 53 of the NDPS Act.

Referring to Standing Order No.1/89, the High Court further elucidated that all packages/containers are to be serially numbered and kept in lots for sampling. In cases where more than one package/container is seized, it is advisable to draw one sample (in duplicate) from each of such packets/containers. Clause 2.5 of the Standing Order, however, states that where the packages/containers seized together are identical in size and weight, bearing identical marking, and the content of each packets gives identical result on colour testing by Drug Identification Kit, conclusively indicating that the packages/containers are identical in all respects, the packages/containers may be bunched together in lots of 10 packages/containers (in case of ganja and hashish lots of 40 packages/containers) and for each of such lots of packages/containers, one sample (in duplicate) may be drawn.

Clause 2.8 states that, while drawing the samples from a particular lot, it must be ensured that representative samples in equal quantity are taken from a package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.

“Therefore, the identity of the packages/containers including their contents has to be preserved while drawing the samples. They cannot all be mixed together to thereafter draw samples. The Standing Order only allows that where the lots of such packages/containers are prepared, samples in equal quantity are taken from each packages/containers of that lot, mixed together, and thereafter sample drawn from such composite whole of samples”, it stated.

According to the Bench, the above procedure had been completely violated and not adhered to by the prosecution. The prosecution emptied all the packages that were recovered from the trolley bag of the accused persons into one composite whole and thereafter, samples from such composite whole were drawn before the Metropolitan Magistrate. Similar exercise was done for the packages recovered from the backpacks carried by the accused. This was clearly is not in compliance with the Standing Orders, the High Court held.

“In my view, however, the non-compliance with the provisions of Section 52A of the NDPS Act would need to be explained by the prosecution at the trial and till then, the cardinal rule that the accused is presumed to be not guilty shall get attracted for holding that “there are reasonable grounds for believing that he is not guilty of such offence” and that the accused meets the pre-condition for release on bail as prescribed in Section 37 of the Act”, Justice Chawla said.

Reiterating the principle that when a thing is prescribed to be done in a particular manner, it must be done in that manner or not at all, the Bench opined that as the manner of sampling had been prescribed in the above two Standing Orders, non-compliance thereof would give rise to reasonable grounds for believing that the accused was not guilty of the offence alleged against him based on the alleged seizure and sampling. The Bench was also in conformity with the judgments in Laxman Thakur (supra) & Amina (Supra).

In the present case, prima facie the sampling procedure followed by the prosecution was not in conformity with the terms of the Standing Orders no.1/88 and 1/89. The Bench also noticed that there was no prior history of any prosecution being pending against the accused persons herein. The accused had already been in custody for more than a year. Both the accused are aged around 20 years and the trial was likely to take long.

“In my view, therefore, the applicants have been able to meet the test laid down in Section 37 of the NDPS Act and of being enlarged on bail”, the Bench said while directed that the applicants be released on conditional bail.