In a significant judgment under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the Punjab and Haryana High Court ruled that a minute difference in the colour of seized heroin as recorded in the seizure memo and the FSL (Forensic Science Laboratory) report cannot be the sole ground for granting bail.
The case involved a bail plea by an accused named Sonu, charged under Sections 21-C and 29 of the NDPS Act for alleged possession of 305 grams of heroin, which falls under the commercial quantity category.
The petitioner’s counsel argued that the seizure memo recorded the colour of the contraband as “bhura” (brown), whereas the FSL report described it as “off-white.” The defence relied heavily on this discrepancy to seek bail.
However, the Court rejected this ground, emphasizing the practical difficulty in exact colour identification by non-experts.
“...Little bit of friction would change the shade and it is very difficult for an ordinary person to state whether the colour is off white or bhura. Further, bhura does not mean brown. It is somewhat a shade between off white and brown,” the Court noted.
The bench observed that forensic experts, with scientific training, are better equipped to assess subtle colour distinctions than police officers or laypersons. It added that unless the Investigator is given a chance to explain the difference, granting bail on this narrow ground would be "extremely unjust."
“The police officer was not an expert of colours nor proved to be somebody with a scientific background to understand the difference... without giving an opportunity to the Investigator to explain the difference in colour, it shall be extremely unjust for this Court to grant bail simply on the minute difference of bhura (dark off white) as stated in the recovery and off white as stated by the laboratory.”
The prosecution, opposing the bail, pointed out that in Punjabi, the term “off-white” may even refer to brown (bhura), and perception of colour varies from person to person, with some even being colour blind to subtle shades.
The Court also underlined that since the recovered heroin quantity falls within the commercial bracket, the rigorous conditions of Section 37 of the NDPS Act apply. These require the court to be satisfied on two fronts: that the accused is not guilty and is unlikely to commit any offence while on bail.
“Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs... The stringent conditions... do not create a bar for bail... but they place a reverse burden on the accused, and once crossed, the rigors no more exist.”
Upon examining the facts, the Court concluded that there was sufficient prima facie evidence against the petitioner. It further stated that the accused had been in custody for one year and eight months, which could not be considered prolonged in light of the minimum ten-year sentence prescribed under the NDPS Act.
Accordingly, the bail plea was rejected.
Mr. Ruhani Chadha, Advocate for the petitioner.
Mr. Sukhdev Singh, A.A.G., Punjab.
Title: Sonu @ Rinka v. State of Punjab
