The Kerala High Court, while refusing bail to a person accused of crimes under Sections 20(b)(ii)(C), 25, and 29 of the NDPS Act, 1985, has held that the requirement of taking samples without mixing the contraband is only recommendatory and its violation cannot be considered at the stage of bail.

Dismissing the bail application, the Bench of Justice Viju Abraham placed reliance on the judgment of the Apex Court Sumit Tomar v. State of Punjab, (2013) 1 SCC 395 in which it was observed that merely because different punishments have been prescribed depending on the quantity of the contraband, mixing of two bags will not cause any prejudice to the appellant therein and rejected the contention taken by the appellant therein that police should have taken two samples each from the two bags.

Advocate Vishnuprasad Nair appeared for the Petitioner and K. A. Anas appeared as the Public Prosecutor before the Court.

In this case, the Sub Inspector of Police had received some secret information that ganja (narcotic substance) was being transported in large quantities through a public road. Consequently, he intercepted a suspicious tempo van and conducted a search in the vehicle. The Petitioner was found sitting along with the driver of the vehicle.

The Petitioner and the driver were arrested with the contraband for having transported the same in the vehicle, in a separate cabin constructed on the rear side. A case was registered against them, and contraband of 154.3 kilograms was seized.

The Specific case of the prosecution was that 154.3 kgs of ganja was kept in 94 separate packets in a separate cabin attached to the vehicle which has been seized. In seizure mahazar, page No. 5, it is stated that immediately after the arrest the recovered packets, 94 in numbers, were cut opened and after mixing the recovered substance together by putting it into a tarpaulin sheet it was separately packed in 11 polythene covers and then representative samples were drawn from the 11 polythene covers. Petitioner contended that the said procedure is against the circular issued in this regard by the Central Government.

The Petitioner submitted that he was attached to a workshop that was entrusted with the repair works of the said vehicle, and was only travelling in the vehicle to check for any mechanical defects. He submitted that he had no relation with the driver of the vehicle, or the contraband that was seized. Further, the Petitioner contended that the quantification and sampling done was in violation of the statute and procedure prescribed under Section 52A of the Act.

The High Court analyzed the various judgments relied upon by the Petitioner and the Prosecution.

The Court found that some of the judgments relied upon by the Petitioner could not be treated as final and conclusive, and the facts of the others were not similar to the present case.

In that context, the Court held that since the quantity involved was commercial in nature, and the Petitioner could not substantiate his application with cogent reasons, the application must be dismissed.

Considering that the final report was already filed and the Petitioner had been in custody for a long time, the Court directed the Trial Court to expedite the trial of the case.

Cause Title - Shanmughadas@Appu v. State of Kerala

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