Allowed

Salim Rashid Shaikh v. State of Maharashtra

Bombay HC4 Sept 2024BA/2795/2024

Case brief

AI extract

What is this about?

Bail application under Section 439 CrPC for NDPS offences involving 11.87 g mephedrone, an intermediate quantity not attracting Section 37 rigors. Samples were drawn after mixing contents of 29 pouches without field testing, infirming sampling rules. Bail was granted with conditions.

What did the court decide?

Applicant released on bail in Crime No.115/2024 on PR bond of Rs.25,000 with one solvent surety, barred from entering Solapur City till trial, subject to attendance and non-tampering conditions.

Salim Rashid Shaikh vs State of Maharashtra — Narcotics (NDPS) | Bombay HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL BAIL APPLICATION NO.2795 OF 2024

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Salim Rashid Shaikh ... Applicant

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V/s.

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The State of Maharashtra … Respondent

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Ms. Mallika Sharma with Zehra Charawia, for the applicant. Mr. Pandurang Gaikwad, APP, for the Respondent / State.

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CORAM : ANIL S. KILOR, J.

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DATE : 20^TH SEPTEMBER, 2024.

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PC:

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Heard.

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By this application under Section 439 of the Code of Criminal Procedure the applicant is seeking bail in Crime No.115 of 2024, registered with Fauzdar Chawdi Police Station, Solapur City for the offences punishable under Sections 8(c) and 22 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

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In the present matter the quantity of mephedrone is 11 gram and 870 miligram recovered from the applicant which is intermediate quantity. Admittedly rigors of Section 37 of the NDPS Act, therefore, would not apply to this case. Apart from the same the most important factor is that in the present matter 29 plastic pouches

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containing white powder were seized from the applicant and without coming to the conclusion that it is a mephedrone, the contains of all the 29 pouches were mixed together.

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Thereafter, out of the total quantity two samples were drawn of 2 grams each and remaining 7 gram and 870miligram mephedrone were sealed in a separate plastic pouch.

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This Court in a case of ‘Amjad Aslam Shaikh Vs. Union of India and Another’¹ has relied upon the order of this Court passed in the case of ‘Aniodo Tochukwu vs. The State of Maharashtra’’² and observed as under:

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9] I have given my anxious consideration to the rival submissions. On the aspect of seizure of the contraband and drawing of the samples, the seizure panchanama records that a black polythene bag was found in the left pocket of the trouser of the applicant. The said polythene bag, in turn, contained five zip pouches with light yellowish crystal powder. It further records that as the raiding party was not carrying drug detention kit, on the basis of the colour, smell and touch, the empowered officer realized that the substance so recovered was MD. Thus, the contents of all the five pouches were mixed together and kept in a new plastic zip pouch, and, thereafter, it was weighed. The substance along with the pouch weighed 55 gms.

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10] Prima facie, it does not appear that the empowered officer had tested the contents of each of the five small zip pouches, independently. Nor the seizure panchanama records that the empowered officer satisfied himself that the contents of each of the five small zip pouches were identical. In this view of the matter, the prosecution will have to meet the challenge that the collection of the sample after the contents of all the five pouches were mixed together,

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1 Bail application No. 215 of 2022

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2 Bail application No. 4148 of 2023

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denuded the sample of its representative character.

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11] Rule 10 of the Narcotic Drugs And Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 (Rules 2022) reads as under :-

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Drawing the samples :-

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(1) One sample, in duplicate, shall be drawn fromeach package and container seized.

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(2) When the packages and containers seized together are of identical size and weight bearing identical marking and the contents of each package give identical results on colour test by the drugs identification kit, conclusively indicating that the packages are identical in all respects, the packages and containers may carefully be bunched in lots of not more than ten packages or containers, and for each such lot of packages and containers, one sample, in duplicate, shall be drawn:

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Provided that in the case of ganja, poppy straw and hashish (charas) it may be bunched in lots of not more than fourty packages or containers.

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(3) In case of drawing sample from a particular lot, it shall be ensured that representative sample in equal quantity is taken from each package or container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.

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12] In the case at hand, it does not appear that the satisfaction as envisaged by Rule 10 has been recorded by the empowered officer. Since the weight of the contraband allegedly found in possession of the applicant, alongwith the plastic zip pouch, was 55 gms only, which marginally exceeds the commercial quantity of MD, this aspect of mixture of the contents of all the pouches, in the facts of the case, assumes significance.

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In Venktesh Permal (supra) after an elaborate analysis of Standing Instructions No. 1/88 and Standing Order No. 1/89 and the judgments of the Supreme Court in the cases of Union of India vs. Bal Mukund and Others9 and Sumit Tomar vs. State of Punjab10, this Court had observed, interalia, as under:-

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33] Reverting to the facts of the case, it is imperative to note that in the seizure panchanama, it is recorded that Police Sub-Inspector Dhotre had opened all four packets which were allegedly found in possession of the applicant. Contents appeared to be ganja. Thereupon, all the contents were mixed in a while nylon bag, weighed and, thereafter, samples were collected.

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34] As noted above, sub-clause (b) and (e) of the Standing Instructions 1/88 and sub-clauses 2.5 and 2.8 of the Standing Order 1/89 envisage bunching of packets /containers in lots and thereafter, drawing of representative sample from each packet / container of that lot and mixing together to make a composite whole from which the samples are drawn for that lot. However, the principal condition is that the officer effecting the seizure must find that the packets/containers seized together are of identical size and weight bearing identical marking and contents of each packet give identical results on colour test by drug identification kit, and, thus, conclusively indicate that the packages are identical in all respects.

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35] Evidently, the underlying object of the Instructions is to ensure that the sample which is collected represents the bulk, unmistakably. Invariably, in pursuance of the provisions of the Act, and the Drug Disposal Rules, the bulk is disposed. When a person is sought to be fastened with liability for possessing a particular quantity of contraband, in bulk, on the basis of the sample collected, the Court ought to have the assurance that the sample so collected represented the entire bulk. The insistence on collecting samples from each of the packets and containers stems from this objective.

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36] In a situation of present nature, where the seizure panchanama does not indicate that the packets were identical and the contents were also identical and the officer effecting search had satisfied himself that the packets were identical in all respects, the mixing of the contents and thereafter collecting the samples from the said mixture, without anything more, erodes the sanctity of the samples so collected as representative samples of the bulk.

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37] am, therefore, impelled to hold that in the facts of the case, there has not been substantial compliance of the Standing Instructions 1/88 and Standing Order 1/89.

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Resultantly, the question as to whether the liability can be fastened on the applicant for the possession of the contraband, prima facie, enters in the realm of uncertainty.

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In the case of Chand Riyaz Shaikh (supra) this Court had observed as under:-

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19] The record also prima facie reveal that the investigating agency had not drawn sample independently from each packet but had mixed together the entire contraband in one packet without field test and thereafter taken the sample and forwarded the sample to CSFL for analysis. In my prima facie view, the sample was not drawn in consonance with the standing orders, and hence prima facie the sample sent to CSFL was not the representative sample.

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In the light of aforesaid exposition of law, even if the submission of Mr. Shirsat that there is no prescribed test to determine the character of MD is taken at par, in the peculiar facts of the case, it is imperative to note that it is not the case of the prosecution that the authorized officer had satisfied himself that the substance found in the three pouches was MD. In the seizure panchanama, it is recorded that “believing the

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statement of applicant Amjad Shaikh (A/1) that the content of the three pouches was MD”, the substance was mixed and kept in another polythene bag. Prima facie, there is infraction of the standing instructions as regards the seizure and sampling.

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Thus, in view of the above referred well settled principles of law and in view of the admitted facts that the contents of the 29 plastic pouches seized from the applicant, were mixed together without arriving at a definite conclusion that in all the contents of each package give identical result on colour test pouches the contents are mephedrone, I am of the opinion that though the learned APP is strongly opposing the application, I am of the opinion that the applicant is entitled for grant of bail.

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ORDER

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i) Criminal application is allowed;

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ii) It is directed that the applicant shall be released on bail in Crime No.115 of 2024, registered with Fauzdar Chawdi Police Station, Solapur City for the offences punishable under Sections 8(c) and 22 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 on furnishing P.R.Bond of Rupees Twenty-Five Thousand with one solvent surety in the like amount;

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iii) The applicant shall not enter into the territorial jurisdiction of Solapur City, till the conclusion of the trial;

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iv) The applicant shall not directly or indirectly make

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any inducement, threat or promise to any person acquainted with the facts of the case, as also not tamper with the evidence;