Excelsior Correspondent
Srinagar, Nov 21 : High Court held that the test of one cough syrup bottle cannot assume uniformity of all seized bottles containing the same content and granted bail to the accused of carrying a commercial quantity of drugs.
Justice Sanjay Dhar granted bail to the applicant-accused citing that the seizure memo does not mention the batch number or composition of multiple recovered bottles of a pharmaceutical preparation.
The court said that a single tested bottle cannot be presumed to represent the contents of all bottles as the prosecution must demonstrate uniformity across bottles before relying on representative sampling to establish commercial quantity.
The court was hearing an application seeking bail in a case involving the alleged recovery of multiple bottles of a cough syrup preparation said to contain Codeine. The court clarified that had it been a case where 11 bottles recovered from the possession of the applicant pertained to the same batch, one could have inferred that the sample sealed by the Investigating Agency and sent to the FSL for chemical analysis, is representative sample of the recovered bottles of Omrex-T.
Several bottles of a pharmaceutical preparation were allegedly recovered from the vehicle of the applicant and only one bottle was forwarded to the Forensic Science Laboratory, which reported the presence of Codeine. The remaining bottles were never chemically analysed and the counsel appearing for the applicant submitted that the stringent embargo under Section 37 of the NDPS Act (Commercial quantity) was not attracted.
The prosecution counsel argued that all bottles contained the same preparation, asserting that the tested bottle was sufficient to represent the entire recovery. The Court however in view of considered statutory requirements under Section 37 of the NDPS Act, said that bail may be granted where reasonable grounds exist to believe that the accused is not guilty of possessing a commercial quantity.
The absence of details created a fundamental evidentiary gap, preventing any presumption of uniformity. Only where multiple bottles bear the same batch number can it be reasonably inferred that the chemically analysed sample is representative.
The Court said the precedent forwarded by the prosecution counsel was inapplicable in the present case because there was no foundational material demonstrating that all bottles contained identical contents.
The progress of the trial was also considered by the court and observed that several material witnesses had already been examined and that continued incarceration was not required for investigation or trial.
The court said the prosecution has failed to establish the possession of commercial quantity was recovered from the applicant and that reasonable grounds existed to believe that he was not guilty of such an offence and granted the bail to the applicant subject to certain conditions.
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