# Phool Chand Ali (In Jail) v. Union of India

- **Citation:** (2020) 10 ILRA 265
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-12
- **Case number:** Crl. Misc. Bail Ist Application No. 19743 of 2020
- **Bench:** Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phool-chand-ali-in-jail-v-union-of-india-45184
- **Pages:** 7

## Headnote

A. Compliance of Standing Order No. 1 of
989-application-allowed-the clause 2.4 of
the Standing Order was not complied and
no representative samples were drawn
from all the 19 packets recovered by the
prosecution allegedly from the car of the
applicant-procedure given in clause 2.4 of
the Standing Order was required to be
followed-mixing of small quantity of the
alleged contraband in 19 packets and
thereafter taking of sample has caused
serious prejudice to the case of the
applicant since it cannot be ascertained
whether all the 19 packets contained the
alleged contraband of ganja or notguidelines of the Standing Order cannot
be
blatantly
flouted
and
substantial
compliance therewith must be insisted
upon so that sanctity of physical evidence
in such cases remains intact.(Para 1 to 13)

The application is allowed. (E-6)

List of Cases Cited:

## Text

10 All. Phool Chand Ali Vs. Union of India
265
of the Employers is still there and the only
disassociation of the workmen, as also their
other workmen is during the period of lay
off. These workmen have been, thus, part
of the Employers' establishment since the
decade of 1980s. It cannot, therefore, be
gainsaid that the workmen were engaged as
casual hands to take care of exigencies of
work. They were retained to do work, that
is perennial in nature, and have worked
there entire lives with the Employers. After
revival of production, according to the
Employers, their association continues
except some workmen, whose names are
mentioned in the supplementary affidavit,
having superannuated during this period.

59. Given the aforesaid circumstances
and, of course, subject to whatever has
happened during the layoff when there was no
production, it is very difficult to discard the
Industrial Tribunal's findings that the workmen
are not mere casual hands to take care of
exigencies of work. The insistence of the
Employers that other workmen are also
continuing as casuals, some of them senior to
the workmen, because the Employers have not
taken in permanent workmen through the
procedure prescribed under the Standing Order,
is apparently a specious plea. This Court thinks
that the abiding retention of the workmen even
during economically tumultuous times shows
the permanent nature of the work that the
workmen are engaged to do. Under these
circumstances, to insist that the workmen at this
distance of time still continue as casual hands
smacks of unfair labour practice.

60. In the opinion of this Court, no
illegality, much less a manifest illegality,
can be found in the impugned award.

61. In the result, the petition fails and
is dismissed. No order as to costs.
----------
(2020)10ILR A265
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.10.2020

BEFORE
THE HON'BLE GAUTAM CHOWDHARY, J.

Crl. Misc. Bail Ist Application No. 19743 of 2020

Phool Chand Ali ...Applicant (In Jail)
Versus
Union of India ...Opposite Party

Counsel for the Applicant:
Sri Om Prakash Singh, Sri Rajesh Pratap
Singh

Counsel for the Opposite Party:
Sri Ashish Pandey

A. Compliance of Standing Order No. 1 of
989-application-allowed-the clause 2.4 of
the Standing Order was not complied and
no representative samples were drawn
from all the 19 packets recovered by the
prosecution allegedly from the car of the
applicant-procedure given in clause 2.4 of
the Standing Order was required to be
followed-mixing of small quantity of the
alleged contraband in 19 packets and
thereafter taking of sample has caused
serious prejudice to the case of the
applicant since it cannot be ascertained
whether all the 19 packets contained the
alleged contraband of ganja or notguidelines of the Standing Order cannot
be
blatantly
flouted
and
substantial
compliance therewith must be insisted
upon so that sanctity of physical evidence
in such cases remains intact.(Para 1 to 13)

The application is allowed. (E-6)

List of Cases Cited:

1. Aman Fidel Chris Vs Narcotics Control Bureau,
Crl. Appeal No. 1027 of 2015 & Crl. M.B. 511 of
2019 & Crl. M.A. 1660 of 2020

2. U.O.I Vs Ratan Malik (2009) 2 SCC 624
266 INDIAN LAW REPORTS ALLAHABAD SERIES
3. U.O.I. Vs Ram Samujh & anr.(1999) 9 SCC
429

4. Sushant Gupta Vs U.O.I (2014) 3 ACR 2564

5. St. of M.P. Vs Kajd (2001) 7 SCC 673

6. U.O.I. Vs. Niyazuddin SK & ors. (2017) AIR
SC 3932

7. St. of Ker. & ors. Vs Rajesh & ors. (2020) AIR
SC 721

8.
Satpal
Singh
Vs
St.
of
Punj.
MANU/SC/0413/2018, (2018) 12 SCC 813

9. Shailendra Kumar Gupta Vs St. of U.P.
MANU/UP/0653/2020

10. Mohan Lal Vs St. of Punj., (2018) SCC
Online SC 974

11. Noor Aga Vs St. of Punj. & anr.,(2008) 3 JIC
640 SC

12. St. of Ker. & ors. Vs Kurian Abraham(P) Ltd.
& anr,(2008) 3 SCC 582

13. U.O.I. Vs Azadi Bachao Andolan (2004) 10
SCC 1

14. U.O.I. Vs Shiv Shankar Keshari, (2007) 7
SCC 798

15. Dataram Singh Vs St. of U.P. & anr., (2018)
3 SCC 22

(Delivered by Hon'ble Gautam
Chowdhary, J.)

1. Heard Sri Om Prakash Singh,
learned Senior Counsel for the applicant
and Sri S.R. Singh, learned counsel holding
brief of Shri Ashish Pandey, learned
counsel for opposite party.

2. The allegation against the applicant
in the complaint filed by opposite party is
that on 25.08.2019 Circle Officer, STF,
Lucknow informed the Intelligence Officer
that two persons namely Shalam Ali and
Phool Chand Ali were carrying 150 kg
Ganja
in
one
Bolero
Camper
No.AS16B8229
coming
from
Assam
through
Gorakhpur
to
Mau.
This
information was conveyed to N.C.B.,
Lucknow who after constituting a team
arrested the said applicants on 25.08.2019
from Mau. Applicant disclosed his identity
as Phool Chand Ali and Shalam Ali. Ganja
was found concealed in the secret cavity
between middle seat and back seat of the
car. After opening of cavity made in the car
14 packets wrapped with white polythene
and 5 packets from middle of the seat was
found. After weighing all the material total
quantity was found to be 149 kg. Thereafter
small quantity of ganja was drawn from
each packet by way of scratching and after
mixing them well, two representative
samples, each weighing about 24 gms,
were drawn and were sealed.

3. Learned Senior Counsel for the
applicant has submitted that the general
procedure
for
sampling
provided
in
Standing Order No. 01 of 1989 dated
13.06.1989 has not been complied by the
opposite party. He has relied upon clause
2.1 to 2.8 of the aforesaid standing order
quoted herein below :-

2.1 All drugs shall be classified,
carefully, weighed and sampled on the spot
of seizure.

2.2 All the packages/containers
shall be numbered and kept in lots for
sampling. Samples from the narcotic drugs
and psychotropic substances seized, shall
be drawn on the spot of recovery, in
duplicate, in the presence of search
witnesses (Panchas) and the persons from
whose possession the drug is recovered and
a mention to this effect should invariably be
made in the panchnama drawn on the spot.
10 All. Phool Chand Ali Vs. Union of India
267

2.3 The quantity to be drawn in
each sample for chemical test shall not be
less than 5 grams in respect of all narcotic
drugs and psychotropic substances save in
the cases of opium, ganja and charas
(hashish) were a quantity of 24 grams in
each case is required for chemical test. The
same quantities shall be taken for the
duplicate sample also. The seized drugs in
the packages/containers shall be well
mixed to make it homogeneous and
representative before the sample (in
duplicate) is drawn.

2.4 In the case of seizure of a
single package/container, one sample in
duplicate shall be drawn. Normally, it is
advisable
to
draw
one
sample
(in
duplicate) from each package/container in
case of seizure of more than one
package/container.

2.5
However,
when
the
packages/containers seized together are of
identical size and weight, bearing identical
markings and the contents of each package
given identical results on colour test by the
drug
identification
kit,
conclusively
indicating that the packages are identical
in all respects the packages/container may
be carefully bunched in lots of 10
package/containers except in the case of
ganja and hashish (charas), where it may
be
bunched
in
lots
of,
40
such
packages/containers. For each such lot of
packages/containers,
one
sample
(in
duplicate) may be drawn.

2.6 Where after making such lots,
in the case of hashish and ganja, less than
20 packages/containers remain, and in the
case
of
other
drugs,
less
than
5
packages/containers remain, no bunching
would be necessary and no samples need
be drawn.

2.7 If such remainder is 5 or
more in the case of other drugs and
substances and 20 or more in the case of
ganja and hashish, one more sample (in
duplicate)
may
be
drawn
for
such
remainder package/container.

2.8 While drawing one sample (in
duplicate) from a particular lot, it must be
ensured that representative sample the in
equal
quantity
is
taken
from
each
package/container of that lot and mixed
together to make a composite whole from
which the samples are drawn for that lot.

4. Learned Senior Counsel has
submitted that a reading of the above
clauses of the standing order aforesaid
clearly show that the opposite party was
required to draw a sample from each packet
allegedly recovered with the help of field
testing kit. The mixing of the material from
all the packets and then drawing of
representative sample is not provided in the
Standing Order since if such a course is
adopted the sample would seize to be
representative sample of the corresponding
packet. In the present case 19 packets were
allegedly recovered from the possession of
the applicant and therefore the procedure
given in clause 2.4 of the Standing Order
No. 1 of 1989 was required to be followed
since there were only 19 packets. He has
further submitted that the mixing of small
quantity of the alleged contraband in 19
packets and thereafter taking of sample has
caused serious prejudice to the case of the
applicant since it cannot be ascertained
whether all the 19 packets contained the
alleged contraband of ganja or not.

5. Learned Senior Counsel has relied
upon the judgment of Delhi High Court in
the case of Aman Fidel Chris vs. Narcotics
Control Bureau, Crl. Appeal No. 1027 of
2015 & Crl. M.B. 511 of 2019 and Crl.
M.A. 1660 of 2020, in support of his
contentions. In this case the conduct of the
prosecution of not drawing individual
268 INDIAN LAW REPORTS ALLAHABAD SERIES
sample from each packet recovered was
considered to be violation of Standing
Order aforesaid.

6. Learned counsel for the opposite
party, has vehemently opposed the bail
application and submitted that bail cannot
be granted to the applicant in such cases.
He has relied upon the compilation of case
laws which are follows:-

1. Union of India vs. Ratan
Malik (2009) 2 SCC 624

2. Union of India vs. Ram
Samujh and Another (1999) 9 SCC 429

3. Shushant Gupta vs. Union of
India 2014 (3) ACR 2564

4. State of M.P. vs. Kajd (2001) 7
SCC 673

5. Union of India vs. Niyazuddin
SK and Ors AIR 2017 SC 3932

6. State of Kerala and Ors vs.
Rajesh and Ors AIR 2020 SC 721

7. Satpal Singh vs. State of
Punjab MANU/SC/0413/2018,(2018) 12
SCC 813

8. Shailendra Kumar Gupta vs.
State of U.P. MANU/UP/0653/2020

7. He has submitted that the judgment
of the Delhi High Court relied upon by the
Senior Counsel for the applicant is in
respect of a Criminal Appeal and shall not
be applicable to the case where only
consideration of bail is involved, in view of
Sections 37, 35, 67, 53-A and 54 of
N.D.P.S Act. In the case of Hon'ble Delhi
High Court only four packets were seized
and the goods therein were mixed and two
representative samples of 5 grams each
were drawn. In the present case samples
were drawn from each of the 19 packets
and thereafter sample of 24 grams in
duplicate were made. The samples were
drawn in the presence of Magistrate and
certified by him. The Hon'ble Supreme
Court in the case of Mohan Lal vs. State of
Punjab, (2018) SCC Online SC 974 has
upheld such a conduct of prosecution. The
Hon'ble Delhi High Court has ignored
clauses 2.3, 2.5 and 2.6 of the standing
order no. 1 of 1989 which operate as
exception to clause 2.4 thereof. However
clause 2.4 is only advisory and not
mandatory and compulsory providing for
drawing one sample each from each packet
recovered. In the present case clause 2.8 of
the standing order has been complied. The
judgments referred by the opposite party
have not been considered by the Hon'ble
Delhi High Court in the judgment cited.
The issue with respect to sampling is
beyond the pleadings contained in the bail
application and the other legal requirements
of panchanama, recording of statements
etc., have been fully complied in the
present case.

8. After considering the rival
submissions this court finds that the
argument on behalf of the applicant, that
the clause 2.4 of the standing order was not
complied and no representative samples
were drawn from all the 19 packets
recovered by the prosecution allegedly
from the car of the applicant is well
founded. The reply of the counsel for the
opposite party that clause 2.4 of the
standing order in only advisory and not
mandatory and compulsory has not found
in favour with the Apex Court in the case
of Noor Aga vs. State of Punjab and
Another, 2008 (3) JIC 640 (SC). The Apex
court has held in paragraph nos. 123, 124
and 125 that the standing order in dispute
and other guidelines issued by the authority
having legal sanction are required to be
complied by the subordinate authorities.
For
ready
reference
the
aforesaid
paragraphs are quoted hereinbelow:-
10 All. Phool Chand Ali Vs. Union of India
269

123. Guidelines issued should not
only be substantially complied, but also in
a case involving penal proceedings, vis-`-
vis a departmental proceeding, rigours of
such guidelines may be insisted upon.
Another important factor which must be
borne in mind is as to whether such
directions have been issued in terms of the
provisions of the statute or not. When
directions are issued by an authority
having the legal sanction granted therefor,
it becomes obligatory on the part of the
subordinate
authorities
to
comply
therewith.

124. Recently, this Court in State
of Kerala & Ors. v. Kurian Abraham (P)
Ltd. & Anr. [(2008) 3 SCC 582], following
the earlier decision of this Court in Union
of India v. Azadi Bachao Andolan [(2004)
10 SCC 1] held that statutory instructions
are mandatory in nature.

125. Logical corollary of these
discussions is that the guidelines such as
those present in the Standing Order cannot
be
blatantly
flouted
and
substantial
compliance therewith must be insisted upon
for so that sanctity of physical evidence in
such cases remains intact. Clearly, there
has been no substantial compliance of
these guidelines by the investigating
authority which leads to drawing of an
adverse inference against them to the effect
that had such evidence been produced, the
same would have gone against the
prosecution.

9. The judgment of the Delhi High
Court relied upon by the counsel for the
applicant is in conformity with the
judgment of the Apex Court in the case of
Noor Aga (supra) which has been
reiterated by the Apex Court in the case of
Mohan Lal vs. State of Punjab, (2018)
SCC Online SC 974. The issue raised by
the learned Senior Counsel has not been
answered in the compilation of case laws
filed by the counsel for the opposite party.
They are only related to the question
whether bail should be granted to the
accused in cases under N.D.P.S Act or not.
Liberal
approach
of
the
court
is
unwarranted and bail can be granted only
under exceptional circumstances. Learned
counsel for the opposite party has not cited
any judgment showing the ratio laid down
by the Apex Court in the case of Noor Aga
(supra) in paragraph nos. 123 to 125 is not
correct.

10. The second argument of the
counsel for the opposite party, that at the
stage of consideration of bail application,
the judgment passed in criminal appeal is
not relevant requires consideration. It is not
deniable that the rigorous section 37 of the
N.D.P.S Act provides that the court must
adopt a negative attitude towards bail and
only when it is satisfied that there are
reasonable grounds of believing that the
accused is not guilty of offence alleged and
that he is not likely to commit any offence
while on bail, he can be enlarged on bail. In
the present case there is non-compliance of
the procedure of sampling provided under
the standing order which has statutory force
and therefore the applicant may not be held
guilty after trial. Secondly, there is no prior
criminal history of the applicant which may
compel this court to take the view that the
applicant will commit further offence after
being enlarged on bail. This is his first
implication.

11. The Apex Court in the Case of
Union of India vs. Shiv Shankar Keshari,
(2007) 7 SCC 798 has held that the court
while considering the application for bail
with reference to Section 37 of the Act is
not called upon to record a finding of not
guilty. It is for the limited purpose
270 INDIAN LAW REPORTS ALLAHABAD SERIES
essentially confined to the question of
releasing the accused on bail that the court
is called upon to see if there are reasonable
grounds for believing that the accused is
not guilty and records its satisfaction about
the existence of such grounds. But the court
has not to consider the matter as if it is
pronouncing a judgment of acquittal and
recording a finding of not guilty.

12. Keeping in view the nature of the
offence, argument advanced on behalf of
the parties, evidence on record regarding
complicity of the accused, larger mandate
of the Article 21 of the Constitution of
India and the dictum of Apex Court in the
case of Dataram Singh Vs. State of U.P.
and another reported in (2018) 3 SCC 22
and without expressing any opinion on the
merits of the case, the Court is of the view
that the applicant has made out a case for
bail. The bail application is allowed.

13. Let the applicant, Phool Chand Ali,
in N.C.B. Case Crime No.35 of 2019, under
Section 8/20/27A/29 of the N.D.P.S Act,
1985,
Chalani
Police
Station-
N.C.B.
Lucknow, Police Station- Kotwali, District-
Mau, be released on bail in the aforesaid case
crime number on his furnishing a personal
bond and two reliable sureties of the like
amount to the satisfaction of the court
concerned with the following conditions-

1. The applicant shall not tamper
with
the
prosecution
evidence
by
intimidating/ pressurizing the witnesses,
during the investigation or trial.

2. The applicant shall cooperate in
the trial sincerely without seeking any
adjournment.

3. The applicant shall not indulge
in any criminal activity or commission of any
crime after being released on bail.

4. The applicant shall remain
present before the trial court on each date
fixed, either personally or through his
counsel. In case of his absence, without
sufficient cause, the trial court may proceed
against him under Section 229-A of the
Indian Penal Code;

5. In case, the applicant misuses the
liberty of bail and in order to secure his
presence proclamation under Section 82
Cr.P.C. is issued and the applicant fails to
appear before the Court on the date fixed in
such proclamation, then, the trial court shall
initiate
proceedings
against
him,
in
accordance with law, under Section 174-A of
the Indian Penal Code.

6. The applicant shall remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case, (ii)
framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in the
opinion of the trial court default of this
condition is deliberate or without sufficient
cause, then it shall be open for the trial court
to treat such default as abuse of liberty of his
bail and proceed against him in accordance
with law.

7. In case the applicant has been
enlarged on short term bail as per the order
of committee constituted under the orders
of Hon'ble Supreme Court his bail shall be
effective after the period of short term bail
comes to an end.

8. The applicant shall be enlarged
on bail on execution of personal bond
without sureties till normal functioning of
the courts is restored. The applicant will
furnish sureties to the satisfaction of the
court below within a month after normal
functioning of the courts are restored.

9. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.
10 All. Babbu Vs. State of U.P.
271

10.
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.

11. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.
----------
(2020)10ILR A271
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.10.2020

BEFORE
THE HON'BLE GAUTAM CHOWDHARY, J.

Crl. Misc. Bail Application No. 29346 of 2020

Babbu ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Shiv Bahadur Singh, Sri Rajendra Singh

Counsel for the Opposite Party:
A.G.A., Sri Nafis Ahmad, Sri Devendra
Kumar Singh, Sri Sanjay Kumar Yadav

A. Criminal Law - Indian Penal Code, 1860
- Sections 274, 275, 420 & Drugs and
Cosmetic Act, 1940 - Sections 18(a)(i),
27-application-allowed-section 27 of the
Act would not be attracted-in order to fall
within the ambit of this section the
accused must manufacture the drugs for
sale or stock or exhibit for sale or
distribute for the same -there is no
evidence to show that he applicant had
any shop or that he was a distributing
agent -all that has been shown that two
bags containing the blood have been
recovered
from
the
diggy
of
the
motorcycle, the same was neither sent for
the chemical examination nor the bar code
of
the
blood
was
scanned
by
the
police.(Para 3,4,5)

The application is allowed. (E-6)

List of Cases Cited:-

1. Md. Shabir Vs St. of Mah. (1979) AIR 564,
(1979) SCR (2) 997

2. Dataram Singh Vs St. of U.P. & anr. (2018) 3
SCC 22

(Delivered by Hon'ble Gautam
Chowdhary, J.)

1. Heard Sri Shiv Bahadur Singh,
learned counsel for the applicant, Sri Nafis
Ahmad, Sri Devendra Kumar Singh, Sri
Sanjay Kumar Yadav, learned A.G.A. for
the State and perused the material brought
on record.

2. The present bail application has
been filed on behalf of the applicant Babbu
with a prayer to release him on bail in Case
Crime No. 122 of 2020, under Sections
274, 275, 420 IPC and section 18(a)(i) and
section 27 of Drugs and Cosmetics Act,
1940, Police Station- Chandauli, District
Chandauli during pendency of trial.

3. The contention of learned counsel
for the applicant is that no offence under
sections 274, 275, 420 IPC, section 18(a)(i)
and 27 of Drugs and Cosmetic Act, 1940 is
made out against the applicant. Further
submission advanced by learned counsel
for the applicant is that two bags containing
the blood have been recovered from the
diggy of the motorcycle, the same was
neither sent for the chemical examination
nor the bar code of the blood was scanned
by the police. Lastly argued that the
applicant is innocent and has falsely been
implicated in this case as there is no
evidence to show that the applicant had any
shop or he was a distributing agent or he
was going to sell it, hence section 27 of the