# Wali Hassan v. State of U.P. Opp. Party

- **Citation:** (2022) 6 ILRA 1015
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-07
- **Case number:** Crl. Misc. Bail Appl. No. 18303 of 2020
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/wali-hassan-v-state-of-u-p-opp-party-48620
- **Pages:** 5

## Headnote

A. Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Section 52 - Standing Order / Instruction No.1
of 1989 issued by Government of India u/S 52
of NDPS Act- Have legal sanction and are
required
to
be
strictly
followed
by
the
Police/arresting
authorities
as
they
are
mandatory in nature.

B. Failure to comply with the provisions made
for doing a particular act in a particular manner
renders the action non-est.

C. Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Section 37 -- While considering the bail
application with reference to section-37 of the
Act is not called upon the record a finding of not
guilty. It is for the limited purpose 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 existence of such grounds.

Application allowed. (E-12)
List of Cases cited:-

## Text

6 All. Wali Hassan Vs. State of U.P.
1015
----------
(2022)06ILR A1015
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.06.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Crl. Misc. Bail Appl. No. 18303 of 2020

Wali Hassan ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Siddharth Mishra, Sri Ali Hasan, Sri Istiyaq
Ali, Sri Rakesh Kumar Yadav, Sri Rakesh Kumar
Yadav

Counsel for the Opp. Party:
G.A., Sri Abhishek Mishra (A.G.A.), Sri Janardan
Prakash (A.G.A.), Sri Daya Shankar Mishra (Sr.
Adv.)

A. Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Section 52 - Standing Order / Instruction No.1
of 1989 issued by Government of India u/S 52
of NDPS Act- Have legal sanction and are
required
to
be
strictly
followed
by
the
Police/arresting
authorities
as
they
are
mandatory in nature.

B. Failure to comply with the provisions made
for doing a particular act in a particular manner
renders the action non-est.

C. Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Section 37 -- While considering the bail
application with reference to section-37 of the
Act is not called upon the record a finding of not
guilty. It is for the limited purpose 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 existence of such grounds.

Application allowed. (E-12)
List of Cases cited:-

1. Phool Chand Ali Vs U.O.I. reported in 2020 O
Supreme (All) 797

2. Om Prakash Verma Vs St. of U.P. reported in
2022 O Supreme (All) 323.

3. Amrik Singh Vs St. of U.P. order dated
9.1.2014 passed in Criminal Appeal No.1106 of
2013

4. Gaunter Edwin Kircher Vs St. of Goa reported
in (1993) 3 SCC 145

5. Taylor Vs Taylor [(1875) 1 Ch.D 426, 431] ,

6. Ramchandra Vs Govind AIR 1975 SC 915

7. Chettiam Vettil Ahamad Vs Taluk Land Board
(1979) 3 SCR 839,

8. Shivcharan Sharma Vs U.O.I. & ors. 1981
A.L.J. 641

9. A.R. Antalay Vs Ramdas Sriniwas Nayak &
anr. 1984 2 SCC 500

10. Bharat Chaudhary Vs U.O.I. with Raja
Chandrasekharan Vs the Intelligence Officer
reported in 2021 O Supreme (SC) 811.

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

12. U.O.I. Vs Rattan Malik (2009) 2 SCC 624
(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. Daya Shankar Mishra,
learned Senior Advocate assisted by Mr.
Abhishek Mishra, learned counsel for the
applicant and learned A.G.A. for the
opposite party-State.

2. The present criminal misc. bail
application has been filed on behalf of
applicant- Wali Hasan to release him on
bail in Case No.1392 of 2019, under
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 8, 20, 29, 60 and 3 of N.D.P.S.
Act, Police Station- Baradari, District-
Bareilly.

3. Learned Senior Counsel on behalf of
the applicant submitted that sub-Inspector
lodged a first information report on 17.11.2019
against the applicant and two others with the
allegation that on the basis of information
received, first informant seized a truck on
17.11.2019 at 12:45 hours, which was alleged
to be driven by applicant and carrying 91
packets of Ganja weighting about 201 K.G.
He further submitted that 91 packets of alleged
contraband (Ganja) in 8 Bags (Bora) was
alleged to be recovered from inside of truck
but only 1 packet weighting 1 K.G. (Ganja)
out of 91 Packets was sent for chemical
examination so utmost 1 K.G. can be said to
be Ganja but remaining 200 K.G. cannot be
said to be Ganja or any other contraband
unless there is proper sampling and its
chemical examination. He further submitted
that it is not mentioned in the recovery memo
that from each 91 packets, sample of alleged
contraband (Ganja) was taken and sent for
chemical examination, as such, the procedure
of sampling adopted by the police authority is
in violation of Standing Order / Instruction
No.1 of 1989 dated 13.6.1989 issued by the
Government of India under Section 52 A of
N.D.P.S. Act. He has placed reliance upon
Clause 2.1 to 2.8 of Standing Order /
Instruction No.1 of 1989, which are as
follows:

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.

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.
6 All. Wali Hassan Vs. State of U.P.
1017

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. He next submitted that there is no
evidence on record regarding taking of
samples as provided in standing order /
instructions mentioned above, as such,
taking of proper sample is highly doubtful.

5. On the point of sampling of
contraband, learned counsel placed reliance
upon following judgments and orders:

(i) Phool Chand Ali Vs. Union of
India reported in 2020 O Supreme (All)
797.

(ii) Om Prakash Verma Vs. State of
U.P. reported in 2022 O Supreme (All)
323.

(iii) Amrik Singh Vs. State of U.P.
order dated 9.1.2014 passed in Criminal
Appeal No.1106 of 2013

(iv) Gaunter Edwin Kircher Vs.
State of Goa reported in (1993) 3 SCC
145

6. Learned counsel for applicant
further
submitted
that
standing
instruction and the guidelines issued by
the authority having legal sanction are
required to be strictly followed by the
police / arresting authorities as held by
the Apex Court in the case of Noor Aga
Vs. State of Punjab (2008) 3 JIC 640
(S.C.), the paragraph nos.123, 124 and
125 of the judgment are as follows:

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."

7. Learned counsel further submitted
that if power is given under the Act / statute
/ Rules to do a certain thing in a particular
way, the thing must be done in that way or
not at all. The other method are forbidden.
On this point, learned Counsel placed
reliance upon the case of Taylor Vs. Taylor
[(1875) 1 Ch.D 426, 431] , Ramchandra
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
vs. Govind AIR 1975 SC 915 Chettiam
Vettil Ahamad Vs. Taluk Land Board
(1979) 3 SCR 839, Shivcharan Sharma
Vs. Union of India and Others 1981 A.L.J.
641 and A.R. Antalay Vs. Ramdas
Sriniwas Nayak and Another 1984 2 SCC
500 wherein Hon'ble Court have held that
failure to comply with the provisions made
for doing a particular act renders the action
nonest.

8. Learned counsel further submitted that
vide order dated 31.8.2020, this Court has
directed learned A.G.A. to file counter
affidavit, accordingly, counter affidavit has
been filed in this case but there is no
categorical
averment
in
the
counter
affidavit that sampling was done according
to standing order / instruction. He further
submitted that this Court vide order dated
6.9.2021 directed the counsel for applicant
to inform the Court about the status of the
trial, accordingly, supplementary affidavit
was filed by applicant on 13.9.2021
annexing the certified copy of the order
sheet in order to demonstrate that trial has
not been concluded and prosecution has not
produced any witness in the Court,
therefore, custody of the applicant is
against the provision of Article 21 of the
Constitution of India. He further submitted
that trial is still pending.

9. Learned counsel lastly submitted that
applicant has no other criminal antecedents
and is languishing in jail since 17.11.2019.

10. On the other hand, learned A.G.A.
submitted
that
search
was
made
in
accordance with law and total 91 packets
weighting
201
K.G.
contraband
was
recovered from which sample has been taken
and sent for chemical examination, in which,
it was found that sample weighting 1 K.G.
was Ganja. He further submitted that
investigation was conducted in free and fair
manner, accordingly, charge sheet was
submitted
against
the
applicant
under
Sections 8, 20, 29, 60, 3 of N.D.P.S. Act. He
further submitted that although it is admitted
that applicant has no criminal history but
accused applicant is a man of criminal nature,
as such, is not entitled to be released on bail,
otherwise it will be harmful to the society. On
the point of compliance of Standing Order /
instruction no.1 of 1989 and its averment in
any document (F.I.R., recovery memo or in
the counter affidavit before this Court),
learned A.G.A. could not satisfy the Court
that
compliance
of
standing
order
/
instruction was made in respect to sampling
of alleged contraband from 91 packets.

11. In reply, learned counsel for the
applicant submitted that the applicant is in
custody from more than 2 1⁄2 years and trial is
still pending and there is fair chance of
acquittal of the applicant on the ground
mentioned above, so applicant is entitled to
be released on bail. On the point of custody,
learned counsel for the applicant placed
reliance upon a case arising out of N.D.P.S.
Act in which point of sampling etc. were
involved and the Apex Court has released the
accused on bail in which accused (Raja
Chandrasekharan) remained in custody for
over a period of two years, the reference of
the case is as follows:

Bharat Chaudhary Vs. Union of
India with Raja Chandrasekharan Vs. the
Intelligence Officer reported in 2021 O
Supreme (SC) 811.

12. The Court while considering the
provisions of Section 37 of the N.D.P.S. Act
finds that State was granted time to reply and
the State has filed counter affidavit, which has
been taken into consideration. So far as other
conditions is concerned, it will be relevant to
6 All. Hariom Sharma Vs. State of U.P.
1019
mention that the Apex Court in the case of
Union of India vs. Shiv Shankar Keshari
(2007) 7 SCC 798 as well as in Union of
India Vs. Rattan Malik (2009) 2 SCC 624 has
held that court while considering the bail
application with reference to section-37 of the
Act is not called upon the record a finding of
not guilty. It is for the limited purpose
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
existence of such grounds. It is further material
to state that the applicant has no criminal
history which is not disputed by the State.

13. Considering the submissions of both
the parties and keeping in mind the twin
conditions of Section 37 of N.D.P.S. Act and
perusing the evidence on the record, it is very
much established that sampling was done
contrary to the Standing Order / Instruction
No.1 of 1989 dated 13.6.1989, which are
mandatory in nature, as such chances of
applicant conviction is weak on the basis of
sampling of contraband done in the present
matter as well as on the basis of the ratio of the
judgment in the case of Union of India vs.
Shiv Shankar Keshri (supra) larger mandate
of Article 21 of the constitution of India
without expressing any opinion on the merit of
the case, I am of the view after applying
section 37 of the N.D.P.S. act that the applicant
is entitled to be released on bail.

14. Let the applicant- Wali Hassan
involved in aforesaid case be released on bail
on their furnishing a personal bonds and two
heavy sureties each in the like amount to the
satisfaction of the Court concerned with the
following conditions:-

(i) The applicant shall file an undertaking
to the effect that he shall not seek any
adjournment on the dates fixed for evidence
when the witnesses are present in court. In
case of default of this condition, it shall be
open for the trial court to treat it as abuse of
liberty of bail and pass orders in accordance
with law.

(ii) 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.

(iii) In case, the applicant misuses the
liberty of bail during trial 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.

(iv) 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 absence of the applicant is deliberate or
without sufficient cause, then it shall be open
for the trial court to treat such default as abuse
of liberty of bail and proceed against him in
accordance with law.
----------
(2022)06ILR A1019
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2022

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Misc. 2nd Bail Application No. 12379 of
2022

Hariom Sharma ...Applicant
Versus
State of U.P. ...Opposite Party