Prahlad Kumar vs State Nct Of Delhi

Prateek Jalan, J

By way of the present application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ["BNSS"], the applicant seeks regular bail in connection with FIR No. 473/2024 dated 13.12.2024, registered at Police Station Nabi Karim, Central District, Delhi, for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ["the NDPS Act"].

I have heard Mr. Aditya Aggarwal, learned counsel for the applicant, and Mr. Yudhvir Singh Chauhan, learned Additional Public Prosecutor for the State. The State has also placed on record a status report dated 19.01.2026.

A. PROSECUTION CASE

The case of the prosecution, as emerging from the subject FIR and the status report dated 19.01.2026, is as follows:

a. On the basis of secret information, a raid was conducted on the intervening night of 12-13.12.2024, pursuant to which the applicant was apprehended when he was walking from Qutub Road towards New Delhi Railway Station. Notice under Section 50 of the NDPS Act was served upon him.

b. The applicant was found carrying a maroon-coloured trolley bag, a black-coloured trolley bag, and a black-coloured backpack, from which a total of 24.850 kilograms of ganja [inclusive of the weight of the packing material] was recovered. The present case thus involves a commercial quantity of ganja. The contraband was seized and deposited in the Police Station malkhana.

c. During interrogation, the applicant disclosed that he had purchased the seized ganja from one Ritu Kumar of Brahmpur, Orissa. He further stated that he had no knowledge about the whereabouts of the said person.

d. A raid was conducted at Brahmpur, Orissa, at the instance of the applicant; however, Ritu Kumar was not found.

e. The applicant's mobile phone was thereafter seized and was sent for technical analysis, which revealed a number [9310380733] saved under the name of Ritu Kumar. The said number was found to be registered under the name of one Sameer Kumar Patra. The Call Detail Record further revealed that the applicant and co- accused Sameer Kumar Patra were in contact, and their location was at Brahmpur, Orissa, at the time of alleged delivery of the ganja, i.e. between 09.12.2024 and 11.12.2024.

f. On 03.01.2025, samples of the seized contraband were drawn before the learned Magistrate. The samples were sent to the Forensic Science Laboratory, Rohini["FSL"]on 20.01.2025. As per the result of the FSL report, "On Physical, Microscopic, Chemical & TLC examination, exhibits'1A','2A &'3A'were found to be'ganja'".

g. On 22.05.2025, another raid was conducted at Village-Padmapur, Dasamundali, District Ganjam, Orissa, and it was found that Sameer Kumar Patra resided at the said address. However, he was not found present there. His mother was present, and her statement was recorded. A notice under Section 35(3) of the BNSS was thereafter pasted at his house, but he failed to join investigation. His application seeking anticipatory bail was dismissed vide order dated 19.07.2025 passed by the learned Trial Court.

h. A chargesheet was filed on 11.03.2025 with respect to the applicant, and co-accused Sameer Kumar Patra is absconding. Further investigation is still pending.

The Nominal Roll reflects that, as of 23.01.2026, the applicant had been in judicial custody for a period of 1 year, 1 month, and 11 days. He has thus now been in custody for a period of approximately 1 year and 5 months.

The applicant had earlier preferred a bail application before the learned Special Court, which was dismissed vide order dated 09.07.2025. The Special Court noted that the allegations against the applicant were serious in nature, and that the matter was at an initial stage.

B. SUBMISSIONS BY LEARNED COUNSEL FOR THE PARTIES

Although several contentions have been raised in the bail application, Mr. Aggarwal pressed only three of them at this stage:

a. Firstly, he submitted that the samples were sent to the FSL on 20.01.2025, i.e. after a delay of 17 days from the date of sampling [03.01.2025] conducted before the learned Magistrate in terms of Section 52A of the NDPS Act, in violation of Rule 13 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 ["Sampling Rules"].

b. Secondly, Mr. Aggarwal submitted that there exists a discrepancy in the weight of the contraband at the stage of registration of the FIR and at the time of the sampling procedure before the learned Magistrate, as also between the weight of the samples drawn during the sampling procedure and that reflected in the FSL report, thereby rendering the recovery doubtful.

c. Lastly, the description of the seized substance in the FIR, as well as the seizure memo, viz." घास जैसा बदबूदार पदार्थ जो देà¤-ने सुघने à¤"र छूने पर à¤-ांजा जैसा परतीत हो रहा था "[which may be translated as'grass-like, foul-smelling substance which appears to be ganja on the basis of sight, smell, and touch'],does not correspond to the statutory definition of "ganja" as provided under Section 2(iii)(b) of the NDPS Act, which requires the presence of "flowering or fruiting tops".

Mr. Aggarwal relied upon decisions of the Supreme Court as well as this Court in support of his contentions, to which I shall advert at the appropriate stage in this judgment.

Per contra, Mr. Chauhan submitted as follows:

a. He submitted that the recovery in the present case pertains to a commercial quantity of ganja [20 kilograms and above], and accordingly, the rigours of Section 37 of the NDPS Act are attracted. He further submitted that, charges having been framed, a presumption arises in favour of the prosecution.

b. While Mr. Chauhan did not dispute that there was, in fact, a delay of 17 days in sending the samples to the FSL, during which period they remained stored in the malkhana, he submitted that no prejudice was caused to the applicant, as the FSL report records that the seals were found intact. He also drew my attention to the seizure memo and the order of the learned Magistrate, both of which record that the contraband was duly sealed.

c. Relying upon the FSL report dated 18.02.2025, a copy whereof was handed up in Court during the hearing on 21.04.2026, he submitted that each exhibit was described as containing "Dried greenish brown coloured flowering & fruiting vegetative material". It was further found, upon physical, microscopic, chemical, and TLC examination, that the substance was "ganja".

C. ANALYSIS

i. Re: Delay in sending the samples to the FSL

Mr. Aggarwal's argument with regard to delay in sending of the samples to the FSL is based upon Rule 13 of the Sampling Rules, which reads as follows:

"13. Despatch of sample for testing.-(1) The samples after being certified by the Magistrate shall be sent directly to any one of the jurisdictional laboratories of Central Revenue Control Laboratory, Central Forensic Science Laboratory or State Forensic Science Laboratory, as the case may be, for chemical analysis without any delay.

(2) The samples of seized drugs or substances shall be despatched to the jurisdictional laboratories under the cover of the Test Memo, which shall be prepared in triplicate, in Form-6.

(3) The original and duplicate of the Test Memo shall be sent to the jurisdictional laboratory alongwith the samples and the triplicate shall be retained in the case file of the seizing officer." Emphasis supplied

Mr. Aggarwal emphasised the use of words,"shall be sent directly"in Rule 13(1) above.

In the present case, it is an admitted position that there was a delay of 17 days in forwarding the samples to the FSL. The recovery was effected from the applicant on 13.12.2024. Although the samples were drawn before the learned Magistrate, in terms of Section 52A of the NDPS Act, on 03.01.2025, they were sent to the FSL only on 20.01.2025. During the intervening period, the samples remained in the malkhana.

Mr. Aggarwal relied upon the judgment of the Supreme Court in Surepally Srinivas v. The State of Andhra Pradesh 2025 SCC OnLine SC 683 [hereinafter,"Surepally"], wherein the Court was considering an argument of violation of Section 52A of the NDPS Act, read with Standing Order No. 1/1989 [Standing Order No. 1/1989 dated 13.06.1989, prescribed the procedure for seizure and disposal of narcotic drugs and psychotropic substances, including the procedure for sampling and storage of samples. It was repealed by Rule 29 of the Sampling Rules notified by the Ministry of Finance, Revenue Department, on 23.12.2022], in a case involving 600 kilograms of ganja. The conviction of three appellants was set aside, on the ground of improper sealing and delay in producing the seized contraband before the Court.

The Court noticed its earlier judgments inter alia in Noor Aga v. State of Punjab (2008) 16 SCC 417, Narcotics Control Bureau v. Kashif (2024) 11 SCC 372 [hereinafter,"Kashif"], and Bharat Aambale v. State of Chhattisgarh (2025) 8 SCC 452 [hereinafter,"Bharat Aambale"], and held that a conviction can be sustained, so long as the prosecution is able to demonstrate "substantial compliance" with the statutory provision and the Standing Order. Mr. Aggarwal, however, drew my attention to the following observations in Surepally:

"13. In Bharat Aambale (supra), this Court held that the purport of Section 52-A, NDPS Act read with Standing Order No. 1/89 extends beyond mere disposal and destruction of seized contraband and serves a broader purpose of strengthening the evidentiary framework under the NDPS Act. This decision stresses upon the fact that what is to be seen is whether there has been substantial compliance with the mandate of Section 52-A and if not, the prosecution must satisfy the court that such non-compliance does not affect its case against the accused. This is also what has been held in Kashif (supra).

In the present case, from the evidence on record, it can be seen and it is clear that the seized contraband was not properly sealed. Coupled with this is the fact of the seized contraband not being produced before the trial court prior to 3rd July, 2010. It is difficult to accept the prosecution case that though there may not have been strict compliance of Standing Order No. 1/89, the seized contraband was not tampered at all. Keeping of the seized contraband by PW-3 in a separate room in his office for fifteen days could give rise to an allegation that the seized contraband was by itself substituted and some other items planted to falsely implicate the accused. To avoid suspicious circumstances and to ensure fair procedure in respect of search and seizure, it is always desirable to follow the standing order which provides suitable guidance for the officers investigating crimes under the NDPS Act. Should there be any departure, the same must be based on justifiable and reasonable grounds. We are, satisfied, on appreciation of the evidence on record, that the possibility of tampering during this fifteen-day period cannot be totally ruled out and that not only has there been no substantial compliance of the standing order, the departure has also not been justified.

We have also found from the materials on record that there has been clear non-compliance with the provisions contained in Section 52-A of the NDPS Act. Either possibly due to lack of experience of the investigating officer or his lack of knowledge of the relevant provisions of the NDPS Act, there were lapses which were duly noted by the Sessions Judge. Thus, we are unable to hold that there was primary and reliable evidence before the trial court in respect of the offence committed. The onus of proving that compliance with Section 52-A did not affect the case of the prosecution has not been duly discharged by the prosecution." Emphasis supplied

Mr. Aggarwal emphasised that, if the Court finds a lack of substantial compliance with the statutory provision, it is for the prosecution to prove that the accused was not affected thereby.

Mr. Chauhan, however, submitted that, in Surepally, the seized contraband was produced before the learned Magistrate after a delay of 15 days, and was not sealed properly, thereby lending support to the allegation of possible tampering. However, in the present case, the seizure memo, the order of the learned Magistrate, as well as the FSL Report consistently record that the seals were found to be intact at all relevant stages.

The decisions of the Supreme Court in Kashif and Bharat Aambale make it clear that lapses or delays in compliance with Section 52A of the NDPS Act and the allied rules constitute procedural irregularities, which do not, by themselves, vitiate the trial or entitle the accused to bail. The Court has emphasised the requirement of"substantial compliance",rather than a need for exact or meticulous conformity with the procedure. However, Surepally places the onus upon the prosecution to prove that non-compliance of the statutory provisions did not prejudice the accused.

In the present case, where the rules expressly provide that the samples of contraband, once drawn,"shall be sent directly " to the FSL, the delay of 17 days in doing so cannot be brushed aside as trivial or insignificant. While the prosecution may be able to discharge the burden of rebutting the allegation of prejudice, at the stage of trial, this is one of the prima facie factors which, at this stage, would enure to the benefit of the accused, particularly when analysed in conjunction with the argument regarding discrepancies in weight of the samples, discussed below.

ii. Re: Discrepancy in the weight of the seized contraband

In the present case, the alleged contraband was recovered from a maroon/cherry/red-coloured trolley bag [Katta Exhibit-1], a black- coloured backpack [Katta Exhibit-2], and a black-coloured trolley bag [Katta Exhibit-3], all carried by the applicant. At the time of the seizure on 13.12.2024, the weight of the contraband was determined by the Investigating Officer, who first stood on a weighing scale with each bag individually, and thereafter subtracted his own weight from the total weight recorded on the scale to arrive at the weight of the contraband. Thereafter, at the time of the sampling proceedings under Section 52A of the NDPS Act before the learned Magistrate on 03.01.2025, the seized contraband was again weighed. Two samples of 25 grams each were drawn from each of the katta exhibits, and one sample from each katta exhibit was sent to the FSL.

The weight of the contraband, as well as the samples drawn, at each stage, is set out in the table below:

Exhibit

1

2

3

Weight recorded in the Seizure Memo

13.75 kgs

6.15 kgs

4.95 kgs

Weight recorded at the stage of Sampling Proceedings u/s 52A

13.35 kgs

5.80 kgs

5.00 kgs

Difference

(-) .40 kgs

(-) .35 kgs

(+) .05 kgs

Weight of the samples drawn

2 samples of 25 gm each

2 samples of 25 gm each

2 samples of 25 gm each

Weight reflected in the FSL Report

25.5 gm

29.6 gm

28.7 gm

Difference

(+) .5 gm

(+) 4.6 gm

(+) 3.7 gm

The aforesaid record shows that the weight of the contraband recorded at the time of seizure, and the weight recorded at the time of sampling [20 days later], contained a variation of 700 grams in total [(-) 400 grams, (-) 350 grams, and (+) 50 grams in katta exhibits-1, 2, and 3, respectively]. Of greater statistical significance is the discrepancy between the weight of samples drawn [25 grams each] and the weight of the samples reflected in the FSL report [25.5 grams, 29.6 grams, and 28.7 grams]. The three samples, which collectively weighed 75 grams when drawn before the learned Magistrate, thus weighed 83.8 grams as reported in the FSL report.

Mr. Aggarwal submitted that the aforesaid discrepancy in the weight of the samples casts doubt on the prosecution case, and supports the applicant's case for bail. In this regard, he relied upon a decision of a coordinate Bench of this Court in Kadir v. State Govt. of NCT of Delhi BAIL APPLN. 553/2023, decided on 20.04.2023 [hereinafter,"Kadir"], wherein the accused was granted bail on the ground of a discrepancy between the weight of the sample sent to the FSL and the weight recorded in the examination report.

In Kadir, samples weighing 100 grams each were drawn from the main parcels, deposited in the malkhana, and thereafter sent to the FSL. As per the examination report received from the FSL, the weight of the samples were found to be 134.8 grams and 83.6 grams, respectively, instead of 100 grams. This Court relied upon its earlier judgments in Sanjay Prasad v. State (Govt. of NCT) of Delhi CRL.A. 1074/2013, decided on 08.12.2015 and Mohd. Ramzan v. State (NCT of Delhi) 2005 SCC OnLine Del 512 to hold that the discrepancy between the weight of the samples seized under Section 52A of the NDPS Act, and that recorded in the FSL report "erodes the credibility of the recovery proceedings".

As in Kadir, the prosecution in the present case has failed to furnish any explanation for the discrepancy of 8.8 grams between the weight of the sample drawn before the learned Magistrate and that recorded in the FSL report. This unexplained inconsistency, in my view, casts a doubt on the integrity of the process adopted by the prosecution. A difference of 8.8 grams [11.3% of the weight recorded at the time of sampling and testing] also lends credence to the applicant's argument regarding the unexplained delay in sending the samples for testing.

iii. Re: Identification of the recovered substance as"Ganja"

In the present case, the FIR, the seizure memo, as well as the order of the learned Magistrate under Section 52A of the NDPS Act refer to a"dry grass like substance",whereas the statutory definition requires the presence of "flowering or fruiting tops of the cannabis plant".On this basis, Mr. Aggarwal submitted that the recovered substance does not, in fact, constitute"ganja"within the meaning of Section 2(iii)(b) of the NDPS Act, which reads as follows:

"(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated;"

It may, however, be noted that the FSL report dated 18.02.2025 describes the exhibits as "Dried greenish brown coloured flowering & fruiting vegetative material",which, upon examination, was found to be "ganja".

In this regard, Mr. Aggarwal placed reliance on the judgments of this Court in Ravina Kumari v. The State (NCT of Delhi) 2024 SCC OnLine Del 6748 [hereinafter,"Ravina Kumari"] and Manjay Kumar v. State NCT of Delhi 2026 SCC OnLine Del 1144 [hereinafter,"Manjay Kumar"].. In both these cases, the seized goods comprised a mixture of "flowering buds and fruiting tops" as well as other materials such as leaves, stems, seeds, and stalk. Further, in Ravina Kumari too, the FSL report opined that the exhibits were ganja; however, the Court held as follows:

"17. From the definition, it is evident that flowering buds and fruiting tops of the cannabis plant would be covered under section 2 (iii)(b) but merely leaves /seeds and stalks would not form a part of the definition of"Ganja"unless accompanied by the flowering and fruiting tops.

This can be represented accurately by the below Venn diagram:-

Thus, the intention of the Legislature appears to be clear that in case of Ganja, if it is merely Category A i.e. a homogenous mixture of flowering buds and fruiting tops, then the same would fall within the meaning of "Cannabis", however, if it is merely Category B i.e. a homogenous mixture of seeds/leaves/stalks without the fruiting tops and buds, then the same would not attract the provisions of the NDPS Act.

Though the position with respect to homogenous mixtures i.e. Category A & B is clear, there is often a conundrum surrounding the quantification of Category C, i.e. the overlap between Category A and Category B constituting the heterogenous mixtures which include both the flowering tops and fruiting buds, along with the stems/ leaves and seed.

From the framework of the entire NDPS Act and a reading of S. 2 (iii)(b), it emerges that if the material seized is a heterogenous mixture/Category C, constituting of Category A mixed with Category B, the placebo material such as stalks/leaves/stems (Category B) would not constitute an actual part of the drug and only the actual content and weight of the narcotic drug (Category A) would be relevant for determining whether it would constitute small quantity or commercial quantity.

xxxx xxxx xxxx xxxx

Pertinently, the recovered quantity of about 24.145 Kg was just 4.145 kgs more than the commercial quantity. Since, the entire substance including stems/stalks and dried leaves were weighed together without quantifying the weight of the flowering or fruiting tops, the quantity of 'Ganja' seized from the Applicant may be less than commercial quantity so as to attract Section 20 of the NDPS Act. The weight of actual Ganja recovered is a matter of trial.

It has been consistently held that if there is a prima facie discrepancy in what was seized and what was analysed and weighed and there are reasonable grounds to believe that the petitioner is not guilty of offences dealing in commercial quantity. Consequently, the rigors of Section 37 of the NDPS Act, 1985 for grant of regular bail, would not become applicable as has been held in the case of Ibrahim Khwaja Miya Sayyed (Supra) Ibrahim Khwaja Miya Sayyed v. State of Maharashtra, 2023 SCC OnLine Bom 2873.

In the case of Suresh Kumar (Supra) Suresh Kumar v. State (Govt. of NCT of Delhi), 2016 SCC OnLine Del 1209, the Coordinate Bench of this Court gave benefit to the accused under Section 20 (b) (C) to 20 (b)(ii)(B) by observing that the weight of the contraband was not precise and the actual quantity of Ganja seized could not be determined because the FSL reflected that seeds, which do not come within the definition of Ganja, were weighed along with the flowering and fruiting tops. Thus, when there is a doubt on the actual amount of recovery of contraband, then this unexplained discrepancy would result in a benefit accruing in favour of the bail applicant.

Similar observations have been made in the case of Rajesh Sharma (Supra) Rajesh Sharma v. State of Rajasthan, 2024 SCC OnLine Raj 485, Bettanayaka (Supra) Bettanayaka v. State of Karnataka, 2020 SCC OnLine Kar 3916, Ratanlal (Supra) Ratanlal Kharadi v. State of M.P., 2019 SCC OnLine MP 6083 and Ratnesh (Supra) Ratnesh v. State, 2017 SCC OnLine Del 9883..

In light of the above discussion, it is settled that if there is the discrepancy in weight, as in the present case, the same would be a matter of trial." Emphasis supplied

In Manjay Kumar, although this aspect was noted, the Court also made a prima facie observation that the sampling procedure followed did not comply with the requirements of the Sampling Rules.

At the outset, it may be noted that the present case involves seizure of approximately 24.850 kilograms of ganja, which is only marginally above the commercial quantity threshold of 20 kilograms. The FSL report, placed before the Court, confirms that the samples were found to be"ganja".Although the FIR and seizure memo do not specifically refer to flowering and fruiting tops, the substance was identified as ganja on the basis of its physical characteristics, including sight, touch, and smell. At this stage, I am, therefore, not inclined to conclude finally, that the material does not fall within the definition of "ganja".

The issue, however, remains as to whether the weight of the flowering and fruiting tops, excluding grass-like material, exceeds 20 kilograms so as to constitute commercial quantity. The judgment in Ravina Kumari makes it clear that only the actual content, excluding seeds, stalks, and stems, is relevant for determining the quantity. Given the narrow margin between the minimum threshold and the total alleged seizure of 24.850 kilograms, it is not possible, in the absence of specific material, to determine whether the flowering and fruiting tops alone meet the requirement of commercial quantity.

In view of the binding decisions of this Court, the precise quantity of contraband cannot be ascertained at this stage, as the seized material was weighed alongwith grass-like components which may fall outside the statutory definition of"ganja".

iv. Application of the aforesaid findings

Applying the aforesaid findings to the applicant's entitlement to bail, it may be noted that, at this stage, there exists a prima facie ambiguity as to whether the quantity of contraband allegedly seized [24.850 kilograms] exceeds the threshold of commercial quantity [20 kilograms and above]. While this issue will ultimately be decided at trial, it nonetheless casts doubt on the applicability of the stringent conditions governing bail under Section 37 of the NDPS Act.

Further, the delay in sending the samples for testing, contrary to the Sampling Rules, and the unexplained discrepancy of 8.8 grams between the weight of the sample drawn before the learned Magistrate and that recorded in the FSL report, raise serious doubts about the integrity of the recovery. Although the prosecution may ultimately rectify this deficiency through other evidence at trial, in my view, the accused ought to be given the benefit of doubt at this stage.

The applicant has been in custody for approximately one year and five months, and has no prior criminal involvement. While the prosecution evidence has commenced, the prosecution has cited fifteen witnesses, of whom only one has been examined. The trial is, therefore, likely to take a substantial amount of time.

D. CONCLUSION

For the aforesaid reasons, it is directed that the applicant be released on bail in connection with FIR No. 473/2024 dated 13.12.2024, registered at Police Station Nabi Karim, Central District, Delhi, for the offence punishable under Section 20(b)(ii)(C) of the NDPS Act, subject to furnishing a bail bond in the sum of Rs. 30,000/-, with one surety of the like amount, to the satisfaction of the concerned Trial Court/Duty Magistrate, and further subject to the following conditions:

a. The applicant shall appear before the learned Special Court on each and every date of hearing.

b. If the applicant has a passport, he shall surrender the same to the concerned Special Court, and shall not leave the country without the prior permission of the concerned Special Court.

c. The applicant shall provide his permanent address to the Special Court, as also the address where he is residing during the pendency of the case. The applicant shall intimate the concerned Investigating Officer ["IO"]/Station House Officer ["SHO"], and file an affidavit before the Special Court, regarding any change in residential address.

d. The applicant shall furnish his mobile numbers to the concerned IO/SHO, and shall ensure that the said mobile number remains operational and switched on at all times. The mobile number shall not be changed, nor shall the phone be switched off, without prior intimation to the IO/SHO.

e. The applicant shall report to the jurisdictional Police Station near his place of residence on the 1st of every month at 04:00 PM, and will be released within two hours, after completion of formalities.

f. The applicant shall not, directly or indirectly, contact, visit, nor offer any inducement, threat, or promise to any of the prosecution witnesses or other persons acquainted with the facts of the case.

g. The applicant shall not, directly or indirectly, tamper with evidence nor otherwise indulge in any act or omission that would prejudice the proceedings in the pending trial.

h. The applicant shall not commit any offence during the pendency of the proceedings.

The application stands disposed of in the above terms.

It is clarified that the observations made herein are solely for the purpose of adjudication of the present bail application, and shall not be construed as an expression of opinion on the merits of the case, nor shall they prejudice the rights and contentions of the parties at any stage of the proceedings.

A copy of this judgment be sent to the concerned Jail Superintendent for information and necessary compliance.