J&K&L High Court Grants Bail In NDPS Case; Says Single-Tested Bottle Cannot Represent Entire Recovery Without Batch-Level Uniformity

The Court observed that the prosecution must demonstrate uniformity across bottles before relying on representative sampling to establish commercial quantity.

The Court was hearing a petition seeking bail in a case involving the alleged recovery of multiple bottles of a cough syrup preparation said to contain Codeine.

A Single Bench of Justice Sanjay Dhar, upon examining the records, observed that “in the seizure memo, the batch number and the nature of solution contained in the recovered bottles is not mentioned”, while further clarifying that “had it been a case where 11 bottles recovered from the possession of the petitioner pertained to 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.”

The matter arose after several bottles of a pharmaceutical preparation were allegedly recovered from the vehicle of the petitioner. Only one bottle was forwarded to the Forensic Science Laboratory, which reported the presence of Codeine. The remaining bottles were never chemically analysed.

The petitioner contended that in the absence of any indication in the seizure memo that all bottles belonged to the same batch or contained identical composition, the prosecution could not rely on the single tested bottle to claim recovery of a commercial quantity. The petitioner sought bail, submitting that the stringent embargo under Section 37 of the NDPS Act was not triggered.

The respondent, however, argued that all bottles contained the same preparation, asserting that the tested bottle was sufficient to represent the entire recovery.

The Court considered the statutory requirements under Section 37 of the NDPS Act, noting that bail may be granted where reasonable grounds exist to believe that the accused is not guilty of possessing a commercial quantity. For assessing whether such grounds exist, the Court analysed the evidence collected during the investigation.

The Court noted that the seizure memo did not record the batch number or the nature of the solution present in the bottles. The absence of these details created a fundamental evidentiary gap, preventing any presumption of uniformity. The Bench held that only where multiple bottles bear the same batch number can it be reasonably inferred that the chemically analysed sample is representative.

The respondent placed reliance on the decision in Vijendrajit Ayodhya Prasad Goel v. State of Bombay to support representative sampling. The Court, however, held that the precedent was inapplicable in the present case because there was no foundational material demonstrating that all bottles contained identical contents. Representative sampling can only be justified where uniformity is established.

The Court also considered the progress of the trial, noting that several material witnesses had already been examined and that continued incarceration was not required for investigation or trial.

Consequently, the Court took note that out of 11 recovered bottles, only one bottle sent to FSL for chemical analysis was proven to contain Codeine, and that there was no opinion of the FSL expert in respect of the other 10 recovered bottles, and concluded that “there are reasonable grounds for believing that the petitioner is not guilty of offence of possession commercial quantity of contraband drugs”.

Finding that the prosecution had failed to prima facie establish possession of commercial quantity and that reasonable grounds existed to believe the petitioner was not guilty of such an offence, the High Court granted bail subject to conditions.

Case Title: Javaid Ahmad Bhat v. Union Territory of Jammu & Kashmir

Citation: 2025 LiveLaw (JKL)

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