[NDPS Rules] Seizure Officers Must Collect Contraband Samples Separately From Each Bag: Rajasthan HC Grants Bail To Accused Booked For Possessing Over 1 Kg Heroin

The Rajasthan High Court (“the Court”) granted bail to an applicant who was booked under the NDPS Act for allegedly carrying over 1 Kg of heroin. The bench of Justice Anil Kumar Upman found that the samples of the contraband were not collected in accordance with the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 (“the Rules”).

The applicant was booked under the NDPS Act after he was allegedly found possessing 1189 grams of heroin that fell under the definition of commercial quantity. The counsel for the applicant argued that as per Rule 11 of the Rule, the seizure officer was required to take separate samples from each pouch in the required quantity. However, the procedure was not followed.

The counsel relied on the case of Gaunter Edwin Kircher v State of Goa, Secretarial Panaji, Goa, in which it was clarified that a sample needs to be taken from each bag. On account of this lapse, it was contended that since no sample was drawn from each bag, it was not affirmed that every bag contained the alleged contraband and consequently the total quantity possessed by the applicant also remained unascertained.

After considering arguments from both sides, the Court observed that it was the admitted fact of the prosecution too that samples were not drawn from each pouch. In this light, the Court stated that the argument put forth by the counsel for the applicant was worth considering.

“The arguments of counsel for the petitioner that it cannot be ascertained beyond all manner of doubt that the recovered contraband was of commercial quantity is worth considering. It was imperative for the seizure officer to draw samples from each pouch in pursuance of the Rules of 2022. In identical fact cases, benefit of bail has been granted by coordinate benches of this Court.”

The Court also reiterated that Section 37 of the NDPS Act does not place an absolute embargo on granting of bail. It said that the Courts are expected to record that based on a reasonable reading, the accused might not be guilty at a prima facie stage. Considering this fact, along with other facts like failure to follow the procedure under Section 42 of the NDPS Act, the Court allowed the bail application.

Title: Rajan Singh v Directorate of Revenue Intelligence

Citation: 2024 LiveLaw (Raj) 129

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