1. This is an application seeking regular bail in FIR No. 0021/2022 dated
26.02.2022 u/s 20/29 of the NDPS Act registered at PS Crime Branch.
2. It is stated by Mr. Aggarwal that in the present case, the procedure for
collection of sample is faulty and in violation of standing order 1/88 of the
guidelines of NCB. To substantiate his arguments, he has drawn my
attention to the seizure memo, wherein it has been stated as under:
“Before the following witnesses at 1st Floor, H No. RZ-20P / H No.
6, Gali No. Zero, East Sagarpur, two persons from Delhi, Ajit
Rasulpur, Distt Chapra, Bihar, Age-26 Years and Laxman Thakur
Rasulpur, Distt Chapra, Bihar, Age-52 Years were arrested on the
basis of mukhbari and searched in compliance with all legal
provisions. During the search, person namely Ajit Kumar took off
the black pithu bag from the shoulder, which on opening the bag
and checking, a total of 6 packets covered with brown color tape
were found from the bag and all the packets were found to contain
light moisture grassy material with flowers and seeds, which was
found to be ganja on the basis of smelling and physical properties,
which after weighing all 6 packets, 2/2 kg ganja was found in all
(total 12 kg ganja) after which we put the ganja found in all 6
packets in a white big sack/ katta and tied the mouth of the sack/
katta with the help of white cloth and a pulinda was made and
sealed with the stamp of MK and marked as mark „A‟ After this,
the black bag held in Laxman's hand was checked, on which
TYCOON4 is written on the bag with white thread embroidery, in
which there are a total of two pockets on which there are chains.
On checking the packets, transparent plastic layer was found under
brown color tape and in all the packets, light sealed grass-like
substance with flowers and seeds was found to be ganja on the
basis of smelling and physical properties, which after weighing all
5 packets, all of them got 2/2kg ganja (total 10 kg ganja) which all
Put the ganja found in 5 packets in another white sack/ katta and tie
the mouth of the katta with the help of a white cloth and a pullanda
was made and sealed with the stamp of MK , which was given mark
B. After this, all the 11 packing materials and the above two black
bag were put together in a white bag and the mouth of the katta was
tied with the help of white cloth and a pulanda was made and
sealed with the stamp of MK, which was given the mark C. After
that all the above pulanda mark as A, B and C were taken into
police custody.
3. As per the said seizure memo, the 12 Kg Ganja recovered from 6
packets in possession of Ajit Kumar were mixed and also 5 packets of 2 Kgs
each found from the applicant were mixed and thereafter were sealed.
4. Mr. Aggarwal has relied on a judgment of „Basant Rai vs. State‟ in
Crl. Appeal 909/2005 as well as „Santini Simone vs. Department of
5. Per contra, Mr. Chauhan, learned APP has relied on the judgment of
Supreme Court titled as „Sumit Tomar vs. The State of Punjab‟[(2013) 1
SCC 395] and more particularly paras 11 & 12 which reads as under:
“11. The next contention, according to the learned Senior Counsel
for the appellant, is that the prosecution has committed an
irregularity by mixing up the contraband found in the bags and
taking samples thereafter. We find no substance in the said argument.
The present appellant was driving the car in which two bags of
contraband were loaded. He further pointed out that in view of
Section 15(c) of the NDPS Act, which prescribes minimum sentence
of 10 years and which may extend to 20 years where the
contravention involves commercial quantity, the mixing of two bags
is a grave irregularity which affects the interest of the appellant. We
are unable to accept the said contention.”
12. It is true that Section 15 of the NDPS Act speaks about
punishment for contravention in relation to poppy straw. As per sub-
section (a) where the contravention involves small quantity, the
rigorous imprisonment may extend to six months or with fine which
may extend to ten thousand rupees or with both whereas under sub-
section (b) where the contravention involves quantity lesser than
commercial quantity but greater than small quantity, rigorous
imprisonment may extend to 10 years and with fine which may extend
to one lakh rupees. Sub-section (c) provides that where the
contravention involves commercial quantity, the rigorous
imprisonment shall not be less than 10 years but which may extend to
20 years and shall also be liable to fine which shall not be less than
one lakh rupees but which may extend to two lakh rupees. Merely
because different punishments have been prescribed depending on
the quantity of contraband, we are satisfied that by mixing the said
two bags, the same has not caused any prejudice to the appellant.
Even after taking two samples of 250 gm each, the quantity measured
comes to 69.50 kg which is more than commercial quantity (small
quantity 1000 gm/commercial quantity 50 kg and above). In view of
the same, the contention that the police should have taken two
samples each from the two bags without mixing is liable to be
6. I have heard learned counsel for the parties.
7. The judgment of Sumit Tomar (supra) has been duly considered by
the Coordinate Bench of this Court titled in a judgment titled as „Santini
Simone vs. Department of Customs‟ [2020 SCC OnLine Del 2128] and
relevant paras read as under:
“57. In Sumit Tomar v. State of Punjab, (2013) 1 SCC 395, the Court
was examining the case where according to the prosecution, two
plastic bags containing „bhooki‟ opium powder were recovered from
the dickey of the car. The contents of both the bags were mixed and
two samples of 250 grams each were taken out. The remaining
contraband weighing 69.5 kgs were sealed in two bags and the
samples were sent to Forensic Science Laboratory for examination. It
was contended on behalf of the appellant that the procedure followed
by the concerned seizing officials was irregular and the alleged
contraband could not be mixed and the samples taken thereafter. It
was contended that since the punishment is based on the quantity of
contraband recovered, mixing of substances from two bags was
unacceptable. The said contention was rejected. The Court held that
merely because different punishments have been prescribed
depending on quantity of the contraband, the same has not caused
any prejudice to the appellant. The Court reasoned that even after
taking two samples of 250 grams each, 69.5 kgs of contraband was
still available.
58. In Amani Fidel Chris (supra), four brown colour packets were
allegedly recovered. The said packets contained powdery substances,
which on being tested, yielded a positive result for heroin. The
substances were then mixed properly and weighed with the help of an
electronic machine and it was found that the same weighed 1.5 kgs.
Thereafter, two samples of 5 grams each were drawn from the
recovered substance and put into zip lock pouches. It was contended
that the procedure adopted was not permissible. The procedure of
transferring the contents of all four packets into one and then
drawing a sample from the mixture had caused a serious prejudice,
as it could not be ascertained whether the four packets contained the
alleged narcotic. The Court found that the procedure adopted fell
foul of the Standing Order No. 1/88 dated 15.03.1988 issued by the
Narcotics Control Bureau (which was pari materia to Standing
Order 1/1989 dated 13.06.1989, issued by Department of Revenue,
Ministry of Finance, Government of India). The Court held that
where more than one container/package is found, it is necessary that
samples be drawn from each separate container/package and be
tested with a field-testing kit. If the container/packages are identical
in shape, size and weight then lots of 10 or 40 container/packages
may be prepared. Thereafter, representative samples from each
container/package be drawn.
59. In Basant Rai (supra), a Coordinate Bench of this Court
considered a case where the accused was allegedly found carrying a
polythene bag, containing eight smaller polythene bags, containing a
brown colour substance, which was alleged to be charas. The
Investigating Officer had taken small pieces from each packet and
mixed the same and thereafter, drawn two samples which were sent
to FSL for analysis. The Court found fault with the said procedure
and allowed the appeal. The Court held as under:
“25. After hearing both the learned counsel for parties and going
through the Trial Court Record, I find force in the submission of
learned counsel for appellant. Admittedly, the samples were drawn
after breaking small pieces from 08 of the polythene bags which were
allegedly kept in a green coloured bag by the appellant in his right
hand. The IO prepared two samples of 25 grams each after taking a
small quantity from each of the slabs.
26. Though the settled law is that if it is not practicable 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, result thereon, may be doubted.
27. For example, if the 08 packets were allegedly recovered from the
appellant and only two packets were having contraband substance
and rest 6 packets did not have any contraband; though all maybe of
the same colour, when we mix the substances of all 8 packets into one
or two; then definitely, the result would be of the total quantity and
not of the two pieces. Therefore, the process adopted by the
prosecution creates suspicion. In such a situation, as per settled law,
the benefit thereof should go in favour of the accused. It does not
matter the quantity. Proper procedure has to be followed, without
that the results would be negative.”
60. In Edward Khimani Kamau (supra), a Coordinate Bench of this
Court rejected the procedure where the substance found in nine
packets was transferred into one packet and two samples were drawn
from the same. The Court held that it could not be ascertained that
all nine packets contained heroin.
61. In Charlse Howell @ AbelKom (supra), the NCB had allegedly
recovered 330 grams of heroin. The powder recovered was packed in
166 polythene strips, which were concealed in the laces/hem of
two lehengas. The concealed powder from the 166 strips was
collected in a transparent polythene and on weighing, it was found to
be 330 grams. Two samples of five grams were drawn and put
separately in zip lock polythene pouches. A Coordinate Bench of this
Court following the decision of the Supreme Court in Union of
India v. Bal Mukund, (2009) 12 SCC 161, held that the procedure
adopted was not in conformity with the Standing Order 1/88 dated
15.03.1988, issued by the Narcotics Control Bureau.”
8. I am of the view that as mandated by the Hon‟ble Supreme Court in
judgment of „Union of India vs. Bal Mukund & Ors.‟ [(2009) 12 SCC 161],
standing order 1/88 has been opined to be a “requirement of law”.
9. The 3 Bench judgment of Bal Mukund (supra) is binding on this
10. Relevant portion of Standing order 1/88 reads as under:
“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 packet/container in
case of seizure of more than one package/container.”
11. The standing order 1/88 mandates that the transferring of content of
all packets into one and then drawing a sample from the mixture is not
permitted.
12. I am of the view that in the present case, the instructions in 1/88 has
not been followed and the sample has been drawn after mixing the contents
of various packets into one container. The same has caused serious prejudice
to the case of the applicant. Since the collection of sample itself is faulty, the
rigours of Section 37 of the NDPS Act will not be applicable.
13. The applicant is in custody since 26.02.2022 and has no criminal
antecedents. He has no criminal cases of any nature pending against him.
14. For the aforesaid reasons, I am inclined to allow the application. The
applicant is entitled to be released on bail in FIR No. 0021/2022 dated
26.02.2022 u/s 20/29 of the NDPS Act registered at PS Crime Branch on the
following terms and conditions:
i. The applicant shall furnish a personal bond and a surety bond in
the sum of Rs. 25,000/- each, to the satisfaction of the Trial Court;
ii. The applicant shall appear before the Court as and when the matter
is taken up for hearing;
iii. The applicant shall join investigation as and when called by the I.O
iv. The applicant shall provide his mobile number to the Investigating
Officer (IO) concerned, which shall be kept in working condition
at all times. The applicant shall not switch off, or change the same
without prior intimation to the IO concerned, during the period of
v. The applicant shall report to the local Police Station on the first
Monday of every month;
vi. In case the applicant changes his address, he will inform the IO
concerned and this Court also;
vii. The applicant shall not leave the country during the bail period and
surrender his passport, if any, at the time of release before the I.O.
viii. The applicant shall not indulge in any criminal activity during the
ix. The applicant shall not communicate with, or come into contact
with any of the prosecution witnesses, or tamper with the evidence
of the case.
15. The observations made hereinabove are only for the purpose of
deciding the bail application and will have no bearing on the trial.
16. The application is disposed of in the above terms.