Mohd. Shafi vs State Nct Of Delhi

Headnote AI-drafted · Editorially reviewed

The petitioner, an Afghan national, sought regular bail under Section 439 Cr.P.C. in connection with FIR No. 415/2021 registered under Sections 21/25/29 of the NDPS Act, 1985 and Section 14 of the Foreigners Act, 1946, arising from the recovery of 125.840 kg of heroin from a car of which he was the owner and driver. The principal contention raised on behalf of the petitioner was that the sampling procedure adopted by the Investigating Officer was in gross violation of Standing Order Nos. 1/88 and 1/89 issued by the Department of Revenue, Ministry of Finance, in that only one out of 125 packets was tested at the spot using a field testing kit, the contents of multiple packets were arbitrarily mixed together without individually weighing or marking each packet, and the requirements of Section 52A of the NDPS Act regarding preparation of inventory and drawing of representative samples before a Magistrate were not complied with.

The petitioner relied upon decisions of the Delhi High Court in Sandeep v. State (NCT of Delhi), Amina v. State NCT of Delhi, and Betty Rame v. Narcotics Control Bureau, wherein it was held that non-compliance with Standing Orders pertaining to sampling entitles an accused to bail, and further pointed out that co-accused Tareena had already been granted regular bail by the same Court on the ground of faulty sampling procedure. The State opposed bail contending that commercial quantity was recovered and the Standing Orders were merely advisory and directory in nature, the non-compliance of which could not be a singular ground for release.

The High Court considered the arguments advanced by both sides in the context of the twin conditions under Section 37 of the NDPS Act applicable to offences involving commercial quantity, the extent of non-compliance with the Standing Orders as disclosed by the cross-examination of the Investigating Officer, and the parity argument arising from the grant of bail to the co-accused Tareena.

Catchwords: bail NDPS Act heroin commercial quantity sampling procedure Standing Order 1/88 Standing Order 1/89 Section 52A NDPS Act Section 42 NDPS Act Section 50 NDPS Act Section 439 Cr.P.C. Section 37 NDPS Act Foreigners Act faulty sampling parity Afghan national co-accused bail