TELANGANA HIGH COURT: NDPS ACT | VIOLATION OF STANDING ORDERS DURING CONTRABAND SAMPLING LEADS TO ADVERSE INTERFERENCE AGAINST PROSECUTION.

The Telangana High Court in the case Baba Sow Chandekar & another v. The State of Telangana observed that Standing Orders with respect to sampling and seizure under the Narcotic Drugs and Psychotropic Substances Act, 1985 cannot be flouted and in the absence of substantial compliance of the Standing Orders and adverse inference has to be drawn against the prosecution.

In the present case, the observations came pertaining to recovery of 214 kgs Ganja in 107 packets from two vehicles.

The bench comprising of Justice K. Surender observed and noted that while drawing samples from the seized contraband, it was failed by the investigating authority to specify as to from whom the said sample of Ganja was taken and 55 packets were seized from the A1/1st petitioner packets were seized from the 2nd A2/petitioner, 12 packets were seized from A10.

The Court observed that from the record it is apparent that the Investigating Officer has not taken samples from each of the packets for the purpose of FSL examination. Also, it is not the case of the prosecution that any homogeneous mixture was made after finding that the contraband in all the said packets was dry Ganja. When it is apparent from the record that sampling was done contrary to the standing instructions 1 of 1989, dated 13.06.1989, which is mandatory and it cannot be said that the procedure prescribed under the NDPS Act had been followed by the Police.

The main grounds urged by the counsel appearing for the petitioner are that:

1.As there is no mention of any intimation being given to the superior officer within 72 hours as required, there is non-compliance of provision under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for short ‘NDPS Act’).

2.In accordance with the Standing Order 1 of 1989 dated 13.06.1989, neither the remand report nor the complaint indicate about the sampling done, the counsel further submitted that admittedly, under the supervision of the Magistrate, no sampling was done.

It was observed that the standing order 1/89 provide that provides that quantity of 24 grams in each has to be drawn for the chemical test.

It was noted by the Court and stated that it is not even known as to from which packet the sample was taken out of 107 packets seized. In the said circumstances, when there is blatant violation of Standing Order. Further, the petitioners are entitled to be released on bail.

The Court observed that bail is subject to executing personal bonds for Rs.1 lakh each with two sureties each for a likesum, among which one is local surety and the other is native surety. As specified in the order, the accused are also directed to appear before the concerned police station.

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