1. Petitioner has approached this Court seeking bail under Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.’), in FIR No.154 of 2020, dated 1.10.2020, registered in Police Station Damtal, District Kangra, H.P., under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’).

2. Status report stands filed and record was also made available.

3. As per status report, on 1.10.2022 at 5.02 AM, an information was received from reliable informer that in a Truck No. JK-03D-8971, parked near Hill Top Mandir Damtal, on the side of National Highway-44 facing towards Mukerian, poppystraw is being transported from Jammu. Information was reliable. In case of delay, there was possibility of disappearance of contraband and evidence as well as possibility of movement of Truck from spot. Therefore, Ruka was sent by Inspector Harish Guleria, SHO Police Station Damtal to Duty Officer of Police Station Damtal to record the said information and this information/Ruka was directed to be considered an information letter under Section 42(2) of NDPS Act with instruction to send the said report to SDPO Nurpur District Kangra. Through mobile phone contact, Surender Singh and Sudesh Kumar were joined as independent witnesses in the raiding party and on reaching at spot, driver Ibrahim and Hilal Kadir Bhatt were found sitting in the Truck. They were inquired about material being transported in the truck. They responded that they were transporting apples but they could not give satisfactory answer for parking the truck at that spot. Whereupon, information received by police was communicated to both of them and in presence of independent witnesses truck was searched. After removing tarpaulin, gunny bags were found in the truck which were covered by apple boxes. On unloading, in total, 12 gunny bags were recovered. In each gunny bag, there were small polythene packets containing poppystraw.

4. After arranging weighing machine, each gunny bag was checked and polythene envelopes containing poppystraw, found therein, were weighed. Out of 12 gunny bags, total 3 quintal 363 Kg.18 grams (363.18 Kg.) contraband was recovered. After taking into possession and seizing the recovered contraband, Ruka was sent to Police Station and FIR was registered. Thereafter, investigation was carried out and on finding sufficient grounds for arrest, petitioner Ibrahim along with co-accused Hilal Kadir was arrested. Whereafter, after remaining in police custody, petitioner and co-accused Hilal Kadir have been sent to judicial custody.

5. During interrogation, petitioner and co-accused disclosed that they loaded 12 gunny bags of poppystraw on the direction of truck owner Samasdeen and as there was no space for gunny bags, therefore, 30-40 apple boxes were unloaded and gunny bags of poppystraw were loaded. However, both accused expressed their ignorance about parentage and address of truck owner Samasdeen but every time, they replied that on asking of Samasdeen, they loaded poppystraw in truck but out of greed.

6. Representative sample of recovered contraband was sent for chemical analysis to State FSL. As per State FSL report, contraband recovered has been identified as poppystraw.

7. Challan has been presented before Special Judge on 31.3.2021 and now case has been listed for recording evidence of prosecution on 15.12.2022.

8. As per status report, owner of truck Samasdeen was not found to be owner of truck, rather one Bilal Ahmad Gani of District Anantnag was found to be recorded owner of truck and on 16.7.2021, truck was also released to Bilal Ahmad Gani. But during that and thereafter, no one has come forward, much less Samasdeen, claiming himself owner of truck.

9. It has also been stated in status report that remaining contraband, i.e. 356 Kg. 24 grams poppystraw was disposed of on 9.3.2021 in compliance of order of Superintendent of Police.

10. Learned counsel for the petitioner has submitted that in drawing sample, for sending it to State FSL for chemical analysis, the police has acted in violation of adopted and approved procedure for that as contained in Standing Order 1 of 1989 communicated by Government of India as ‘Laws and Regulations promulgated to give effect to provisions of International Treaties on Narcotic Drugs and Psychotropic Substances’. He has referred para 2.3 of Standing Order No. 1 of 89 wherein it has been provided that the seized drug in packages/containers shall be well mixed to make it a homogeneous and representative, before the sample in duplicate is drawn. According to him, material in those packages and containers was not mixed and, therefore, sample drawn for chemical analysis cannot be treated as homogeneous and representative sample of contraband alleged to be recovered from petitioner.

11. Learned counsel for petitioner has also referred A.R.Antulay vs. Ramdas Sriniwas Nayak and another, reported in (1984)2 SCC 500 [LQ/SC/1989/92] , contending that Supreme Court has held that failure to comply with provisions made for doing a particular act in a particular manner, renders the action nonest. Referring Union of India vs. Shiv Shankar Kesari reported in (2007)7 SCC 798 [LQ/SC/2009/1415 ;] ">7 SCC 798 [LQ/SC/2009/1415 ;] [LQ/SC/2009/1415 ;] ">7 SCC 798 [LQ/SC/2009/1415 ;] ">7 SCC 798 [LQ/SC/2009/1415 ;] [LQ/SC/2009/1415 ;] [LQ/SC/2009/1415 ;] and Union of India vs. Rattan Malik @ Habul, reported in (2009)2 SCC 624 [LQ/SC/2022/1036 ;] , learned counsel for petitioner has submitted that Section 37 of NDPS Act is for limited purpose and confined to question of releasing the accused on bail, and as Investigating Agency has failed to comply with procedure prescribed as notified in Standing Order 1 of 89, petitioner is entitled for bail.

12. Learned counsel for petitioner has also referred Noor Aga vs. State of Punjab and others, reported in (2008)16 SCC 417 [LQ/SC/2008/1384] , with submissions that guidelines under the Standing Order are enforceable and presumption raised in case of present nature is one for shifting the burden subject to fulfillment of conditions precedent there for. He has submitted that as petitioner has been able to point out defect in drawing the sample which would break the chain of prosecution case entitling the petitioner to be acquitted, therefore, present bail application deserves to be allowed.

13. Learned counsel for the petitioner has also placed reliance on judgment dated 5th July, 2022 passed by Division Bench of this Court in Cr. Appeal No. 289 of 2021 titled Taj Deen vs. State wherein for defective faulty procedure for drawing the samples, accused has been acquitted.

14. Learned Additional Advocate General has submitted that in present case commercial quantity starts from 50 Kg and recovered contraband from petitioner is about 7 times more than the minimum prescribed quantity of contraband. He has further submitted that there is no violation of Standing Order No. 1 of 89 and he has placed on record copy of Certification of Inventory under Section 52-A of NDPS Act wherein it has been reflected that each small gunny bag was opened and thereafter each small polythene bag contained therein was opened and 10 grams contraband was taken from each polythene bag of a gunny bag and thereafter sample drawn from each bag was mixed and sent for chemical analysis to State FSL. He further points out that in Inventory every gunny bag was opened separately but all packets contained in each bag were opened for drawing the representative and homogeneous sample and two samples from each gunny bag, after extracting poppystraw from each polythene bag contained in gunny bag, were drawn and one sample each was sent to State FSL and the said fact has been substantiated by chemical analysis examination report received from State FSL Junga and therefore learned Additional Advocate General has submitted that keeping in view the quantity of contraband, period of detention and the fact that matter has been listed for recording evidence of prosecution witnesses on 15.12.2022 petitioner does not deserve to be enlarged on bail.

15. Learned Additional Advocate General further submits that in Taj Deen’s case, as observed in judgment, witness to drug sample did not state mode and manner in which samples were drawn and learned Judicial Magistrate First Class was also not examined and no other witness had stated on record about mode and manner of drawing of sample, whereas in present case prosecution witnesses are being examined and trial is pending adjudication whereas in Taj Deen’s case Division Bench was hearing the final arguments of Criminal Appeal and, therefore, putting reliance of those observations for enlarging the petitioner on bail is pre-mature.

16. Taking into consideration entire material placed before me including the quantity of recovered contraband, period of detention, but without commenting upon the merits of rival contentions of parties, however, considering factors and parameters propounded by the Courts including Supreme Court necessary to be considered at the time of adjudication of bail application, I am of the opinion that petitioner is not entitled for bail at this stage.

17 Observations made in this order hereinbefore shall not affect the merits of case in any manner and are strictly confined for disposal of bail application.

18. The bail application is dismissed and disposed of