On 12.10.2020 Hon’ble Justice Gautam Chaudhary of the Allahabad High Court released an accused on bail because of non-compliance of clause 2.4 of the standing order for sampling of Drugs.
Brief Facts of the Case:-Phool Chand Ali vs Union Of India (Narcotics Control Bureau, Lucknow) are:
The case against the applicant is that on 25.08.2019, the Circle Officer, Informed the Intelligence Officer that Shalam Ali and Phool Chand Ali were transporting 150 kg Ganja from Assam to Mau.
The NCB was informed, and the applicants were arrested on 25.08.2019 from Mau. The NCB recovered Ganja from a secret cavity in the car. The quantity recovered was 149 kgs.
A small quantity of Ganja was drawn from each packet, two representative packets of 24 grams each were drawn and sealed.
The Counsel filed a bail application for the applicants which was taken up by the Allahabad High Court.
Proceedings before the Allahabad High Court
Learned Counsel for the applicants raised the following points before the Allahabad High Court.
It was submitted that the respondents did not follow the general procedure for sampling, as mentioned in the Standing Order No. 01 of 1989 dated 13.06.1989.
Counsel argued that the respondents were required to draw a sample from each packet allegedly recovered with the help of a field testing kit. The respondents had mixed the contents of all the packets then drew a sample. This procedure was not mentioned in the Standing Order. As there were 19 packets recovered, samples should have been drawn from each packet. It was further argued that by not following the protocol, the respondents had caused serious prejudice to the case of the applicants.
Reliance was placed on Aman Fidel Chris vs Narcotics Control Bureau where the Delhi High Court held that if a sample is not drawn from each packet, then it will be considered a violation of Standing Order.
Arguments of the Respondents
Learned Counsel for the respondents refuted the contentions of the applicants and vehemently stated that bail should not be granted. He argued that in Aman Fidel Chris vs Narcotics Control Bureau, the case was of criminal appeal and will not be applicable when bail is considered.
He further argued that in Aman Fidel Chris vs Narcotics Control Bureau only four packets were seized and samples of five grams were drawn whereas in the present case samples from all 19 packets were drawn and were certified by the Magistrate. It was also stated that clause 2.4 of the Standing Order was advisory and was not mandatory. The Counsel stated that all the requirements of the Standing Order were complied with.
The Reasoning of the Allahabad High Court:
Hon’ble Allahabad High Court opined that the argument of the applicant that clause 2.4 of the Standing Order was not complied with was indeed correct. The Court referred to Noor Aga vs State of Punjab and Another where it was held that authorities should comply with the procedure laid down in the Standing Order and there were mandatory.
While considering the second argument of the respondent that the Delhi High Court judgement Aman Fidel Chris vs Narcotics Control Bureau will not be applicable in the present case, the Allahabad High Court opined that even though section 37 of the NDPS act provides that Court should deny bail unless extraordinary circumstances, in the present case the guidelines of Standing Order were not followed, the applicant may be acquitted after trial.
A reference was also made to Union of India vs Shiv Shankar Keshari, where the Supreme Court held that the Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. The Court should consider if there were reasonable grounds to release the person on bail and should not consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.
The Decision of the Allahabad High Court
After going through the arguments advanced, nature of offence and evidence that was produced, the Court held that the applicants should be released on bail.
Title: Phool Chand Ali vs Union Of India (Narcotics Control Bureau, Lucknow)
Case no. Criminal Misc. Bail Application No. – 19743 Of 2020
Date of Order; 12.10.2020
Coram: Hon’ble Justice Gautam Chaudhary
Counsel for Applicant:- Rajesh Pratap Singh, Om Prakash Singh (Senior Adv.) Counsel for Opposite Party:- Ashish Pandey