[NDPS Act] "Sampling Not Done As Per 1989 Standing Order In Seizure Of 201 KG Ganja": Allahabad High Court Grants Bail

The Allahabad High Court has granted conditional bail to an NDPS Accused Wali Hasan, accused of smuggling 201 kg of ganja in view of the fact that the sampling of the Ganja was not done as per the Standing Order/Instruction No.1 of 1989.

The Bench of Justice Chandra Kumar Rai ordered to release the applicant- Wali Hassan on bail on his furnishing a personal bonds and two heavy sureties each in the like amount to the satisfaction of the Court concerned.

Case in brief

It was the case of the prosecution that Wali Hassan/Accused was driving a truck, which was intercepted and a total of 91 packets of 201 kg ganja were recovered from the truck and he was booked under Sections 8, 20, 29, 60, and 3 of N.D.P.S. Act.

It was the case of the accused that 91 packets of alleged contraband (Ganja) in 8 Bags (Bora) was alleged to be recovered from inside of truck but only 1 packet weighing 1 K.G. (Ganja) out of 91 Packets was sent for a chemical examination.

Therefore, it was submitted that atmost 1 K.G. can be said to be Ganja but remaining 200 K.G. cannot be said to be Ganja or any other contraband unless there is proper sampling and its chemical examination.

It was lastly contended by his counsel that it is not mentioned in the recovery memo that from every 91 packets, a sample of alleged contraband (Ganja) was taken and sent for chemical examination, and as such, the procedure of sampling adopted by the police authority was in violation of Standing Order / Instruction No.1 of 1989 dated 13.6.1989 issued by the Government of India under Section 52 A of N.D.P.S. Act.

In view of this, considering the submissions of both the parties and keeping in mind the twin conditions of Section 37 of N.D.P.S., the Court observed thus:

"...it is very much established that sampling was done contrary to the Standing Order / Instruction No.1 of 1989 dated 13.6.1989, which are mandatory in nature, as such chances of applicant conviction is weak on the basis of sampling of contraband done in the present matter...larger mandate of Article 21 of the constitution of India without expressing any opinion on the merit of the case, I am of the view after applying section 37 of the N.D.P.S. act that the applicant is entitled to be released on bail."

Case title - Wali Hassan v. State of U.P. [CRIMINAL MISC. BAIL APPLICATION No. - 18303 of 2020]

Citation: 2022 LiveLaw (AB) 285

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