NDPS Act: Samples Taken Before Magistrate Not Sent For Chemical Analysis- Bombay High Court Grants Bail
The Bombay High Court in a case relating to the NDPS Act, 1985 (Narcotic Drugs and Psychotropic Substances Act) has granted bail to the accused on the ground that the samples taken before the Magistrate were not sent to the Chemical Analyzer.
A Single Bench of Justice S.M. Modak observed, “After going through submission and going through the papers, I am impressed by only one argument that is about not sending samples taken before Learned Magistrate to the Chemical Analyzer. The argument about “not taking samples at the spot but in the office, non- compliance of the provisions of Section 50 (so as to say not having appropriate words in the notice and Mr. Bhoite, Superintendent of Customs acted as Gazetted officer)” does not appeal to my conscience.”
The Bench said that the Court of JMFC was moved by making an application and the Magistrate took inventory and drew a few of the samples but the fact remains that such samples were not sent to the Chemical Analyzer.
Advocate Mithilesh Mishra appeared for the applicant while APP H.J. Dedhia and Advocate Jitendra B. Mishra appeared for the respondents.
Facts -
A raid was conducted in the farmhouse of the applicant at Kelghar, Taluka Jawali, District Satara, in 2021 by the department of the Customs Dapoli Division, Ratnagiri. Two rooms were searched and one plastic bag containing plastic pouches was found, consisting of Ganja.
A personal search of the applicant also took place but nothing objectionable was found. The samples were drawn at the spot marked and second samples were also taken from those gani bags. The applicant came to be arrested and a complaint was filed before the Special Judge, NDPS Satara.
The High Court in view of the above facts noted, “Ultimately when the evidence will be adduced during the trial, there will not be Chemical Analyzer report available on the basis of the analysis done about samples taken before learned Magistrate what will be available is Chemical Analyzer report about samples taken at the spot/office.”
The counsel for the respondents submitted that in such a case, the issue can be decided at the time of trial but the Court disagreed with the same saying that ultimately the trial will be conducted only based on the evidence collected during the investigation.
“I think that Applicant has made out the case for bail. The contraband seized is commercial quantity. Bar under Section 37 is lifted. Hence, the Applicant is deserves to release on bail”, held the Court.
Accordingly, the High Court granted bail to the applicant on furnishing a bond of Rs. 50,000/-.
Cause Title- Santosh Pandurang Parte v. Amar Bahadur Maurya and Anr. (Neutral Citation: 2023:BHC-AS:20698)
