Raj HC | Representative sample of seized contraband can be drawn out only after contents of each package have been subjected to colour test by U.N. drug testing kit

Rajasthan High Court: Vijay Bishnoi J. allowed bail application filed by persons who were arrested for illegal possession of poppy straw; on the ground that the seizing officers did not follow the guidelines issued by Narcotics Control Bureau in regard of seizure, sampling and testing of the contraband.

Applicants herein were arrested for offences punishable under Sections 8, 15, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. They filed an application under Section 439 of the Code of Criminal Procedure for the grant of bail for the said offence which punishes the offender who contravenes rules related to poppy straw.

Counsels for applicant B. Ray Bishnoi and Kailash Khilery contended that statements of seizure officer and Intelligence Officer were recorded before trial court after the second bail application was rejected. They stated that several quantities of samples were collected from some of the bags and were mixed with poppy straw. Thus, it was clear that the seizure officer does not collect separate samples from each bag. It was further contended that the U.N. Kit test was not carried out on each bag before taking a small quantity of poppy husk for samples. Learned Public Prosecutor M.R. Pareek opposed the bail application.

The Court relied on Netram v. State of Rajasthan, 2013 SCC OnLine Raj 2892 where it was held that the essential requirement before drawing a representative sample is that the contents of each package have to be subjected to colour test by U.N drug testing kit. Once the test is conducted and the result indicates that all the packages are identical in all respects, then only a representative sample can be taken out after bunching the packages.

In the instant case, the samples from each bag containing poppy husk/poppy straw had not been collected and test by U.N. Kit had not been conducted on each bag. The Seizure Officer had simply taken out some quantity of narcotic drug from each bag and after mixing the same had taken out some portion for the sample. This act was not in conformity with the Standing Instruction No.1/88 issued by the Narcotics Control Bureau, New Delhi, particularly, Instruction No. 1.7 and, as such, it could not be said that the narcotic contraband recovered in the matter was of commercial quantity or above.

In view of the above and in view the fact that trial of the case was likely to take time, the applicants were granted bail.[Om Praksh Bishnoi v. Union of India, 2019 SCC OnLine Raj 1280, decided on 02-07-2019]

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