"1.5 Place and time of drawal of sample. - Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and mention to this effect should invariably be made in the panchnama drawn on the spot. 1.6 Quantity of different drugs required in the sample - The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn. CRL. APPEAL No. 1027/2015 Page 11 of 30 1.7 Number of samples to be drawn in each seizure case- (a) In the case of seizure of single package/container one sample in duplicate is to 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. (b) However, when the package/container seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. kit, conclusively indicating that the packages are identical in all respect/the packages/container may be carefully bunched in lots of
10 packages/containers may be bunched in lots of 40 such packages such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn. (c) Where after making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remains, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. (d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja and Hashish, one more sample in duplicate may be drawn for such remainder package/containers. (e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug 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." (emphasis added)
14. Pari materia with Standing Order 1/88 is the Standing Order No.1/89 CRL. APPEAL No. 1027/2015 Page 12 of 30 dated 13.06.1989 issued under subsection (1) of Section 52A of NDPS Act by the Department of Revenue, Ministry of Finance, Government of India. Section (II) provides for general procedure for sampling, storage and reads as under:- SECTION II- GENERAL PROCEDURE FOR SAMPLING, STORAGE ETC. 2.1 All drugs shall be properly classified, carefully, weighed and sampled on the spot of seizure. 2.2 All the packages/containers shall be serially 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 witness (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama 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 cases of opium, ganja and charas (hasish) where 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. CRL. APPEAL No. 1027/2015 Page 13 of 30 2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the content of each package given identical results on color test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of 10 packages/ 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 Whereafter 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 will be necessary and no sample need to be drawn. 2.7 If such remainders are 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 a reminder package /container. 2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample are in equal quantity is taken from a package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 2.9 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should bear the S.No. of the package(s)/ containers from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope CRL. APPEAL No. 1027/2015 Page 14 of 30 which should also be sealed and marked secret-drug sample/ Test memo is to be sent to the chemical laboratory concerned. 3.0 The Seizing officers of the Central Government Departments, viz., Customs. Central Excise, Central Bureau of Narcotics, Narcotics Control Bureau, Directorate of Revenue Intelligence etc. should dispatch samples of the seized drugs to one of the Laboratories of the Central Revenues Control Laboratory nearest to their office depending upon the availability of test facilities. The other Central Agencies like BSF, CBI and other Central Police Organizations may send such sample to the Director, Central Forensic Laboratory, New Delhi. All State Enforcement Agencies may send samples of seized drugs to the Director/Deputy Director/Assistant Director of their respective State Forensic Science Laboratory. 3.1 After sampling, detailed inventory of such packages /containers shall be prepared for being enclosed to the panchanama. Original wrappers shall also be preserved for evidentiary purposes. (emphasis added)
15. In view of the stringent provisions of the NDPS Act, the issue to be considered is whether the procedure specified under the Standing Orders can be flouted.
16. A combined reading of paras of the Standing Orders would show that where more than one container/package is found, the respondent is required to draw a sample from each of the individual container/package and test each of the sample with the field testing kit. It is further provided that if the container/packages are identical in shape, size and weight then lots of 10 or 40 containers/packages may be prepared and thereafter representative CRL. APPEAL No. 1027/2015 Page 15 of 30 samples from each container/package in a particular lot are to be drawn, mixed and sent for testing.
17. Mixing of the contents of container/package (in one lot) and then drawing the representative samples is not permissible under the Standing Orders and rightly so since such a sample would cease to be a representative sample of the corresponding container/package.
18. In the present case, four packets containing suspicious powdery substance were found concealed in a stroller bag. On testing with the field testing kit, the powder in each packet tested positive for heroin. The I.O., without weighing the contents of each individual packet, mixed the powder from all the 4 packets in one polythene bag and then drew the sample from the mixture.
19. In the opinion of this court, the respondent ought to have adopted the procedure outlined in Para 2.4 of the Standing Order 1/89 [or para 1.7(a) of Standing Order 1/88] by drawing sample (in duplicate) from each of the 4 packets separately and then sending the samples for testing.
20. Going by the submission of learned counsel for the respondent that the procedure in para 2.5 [or para 1.7(b) of Standing Order 1/88] was to be followed and the four packets were to be considered as one lot, even then the contents of all the four packets ought not to have been mixed with each other. Instead, in terms of Para 2.8 [or para 1.7(e) of Standing Order 1/88], representative samples (in duplicate) from each individual packet ought to have been taken. Once representative samples were drawn from each individual packet, then such representative samples were to be mixed together to make a composite whole, out of which a further sample was to be CRL. APPEAL No. 1027/2015 Page 16 of 30 drawn as a representative sample of this lot of four packets. The Standing Order nowhere provides that the contents of all the containers/packages are to be mixed, which has been done in the present case.
21. The object of not mixing the contents of container/packages with each other can also be inferred from Paras 2.9 and 3.1 of Standing Order 1/89 where it is stated that Both the envelopes should bear the S.No. of the package(s)/containers from which the sample has been drawn and After sampling, detailed inventory of such packages/containers shall be prepared for being enclosed to the panchnama.
22. The sanctity of the Standing Order 1/89 came for consideration before the Supreme Court in Noor Aga v. State of Punjab reported as (2008) 16 SCC 417, where the facts before the Court were that 1.4 kg heroin was found concealed in a cardboard container carrying grapes. It was held as under:-
87. Perseverance of original wrappers, thus, comes within the purview of the direction issued in terms of Section 3.1 of the Standing Order No. 1 of 1989. Contravention of such guidelines could not be said to be an error which in a case of this nature can conveniently be overlooked by the Court.We are not oblivious of a decision of this Court in Chief Commercial Manager, South Central Railway, Secunderabad and Ors. v. G. Ratnam and Ors (2007) 8 SCC 212 relating to disciplinary proceeding, wherein such guidelines were held not necessary to be complied with but therein also this Court stated: (SCC p.222,para 23)
23. In the cases on hand, no proceedings for commission of penal offences were proposed to be lodged against the respondents by the CRL. APPEAL No. 1027/2015 Page 17 of 30 investigating officers.
88. In Moni Shankar v. Union of India and Anr. (2008) 3 SCC 484 , however, this Court upon noticing G. Ratnam (supra), stated the law thus:
15. It has been noticed in that judgments that Paras 704 and 705 cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. This Court proceeded on the premise that the executive orders do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued.
16. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent official. It was furthermore opined: (Moni Shankar case., SCC p. 493, para 23) 23..It may be that the said instructions were for compliance of the Vigilance Department, but substantial compliance therewith was necessary, even if the same were not imperative in character. A departmental instruction cannot CRL. APPEAL No. 1027/2015 Page 18 of 30 totally be ignored. The Tribunal was entitled to take the same into consideration along with other materials brought on record for the purpose of arriving at a decision as to whether normal rules of natural justice had been complied with or not.
89. Guidelines issued should not only be substantially complied, but also in a case involving penal proceedings, vis-a-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.
90. Recently, this Court in State of Kerala and Ors. v. Kurian Abraham (P) Ltd. (2008) 3 SCC 582 following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan (2004) 10 SCC 1held that statutory instructions are mandatory in nature.
91. 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. (emphasis added)
23. In Union of India & Ors. v. Bal Mukund & Ors. reported as (2009) 12 SCC 161, the Supreme Court while referring to the Standing Instruction CRL. APPEAL No. 1027/2015 Page 19 of 30 1/88, held as follows :-
36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction No. 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW-
7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law." (emphasis added)
24. Earlier, in Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa reported as 1993 3 SCC 145, the accused was found in possession of 2 cylindrical pieces of charas which were found to be 7 gram and 5 grams respectively. The investigating agency sent only one piece weighing 5 grams for chemical analysis while neither the second piece weighing 7 grams nor any of its part was sent for chemical analysis. The Supreme Court held that both the pieces ought to have been sent. It was held as follows :-
5. As already mentioned only one piece was sent for chemical analysis and P.W.1, the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms. From this report alone it cannot be presumed or inferred that the substance in the other piece weighing 7 gms. also contained Charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not to all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms. of Charas was recovered from the accused. In view of the evidence of P.W.1 it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms. was recovered from the accused. The failure to send the other piece has given rise CRL. APPEAL No. 1027/2015 Page 20 of 30 to this inference. We have to observe that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not practicable, in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law.
25. A coordinate Bench of this Court in Basant Rai v. State reported as (2012) 191 DLT 403, under somewhat similar circumstances where the accused was found carrying a polythene bag containing 8 smaller polythene bags having brown colour substance and the investigating officer took small pieces of charas from each packet, mixed the same and drew two sample parcels which were sent to FSL for analysis, while allowing the appeal of the accused, held as under:
25. After hearing both the learned counsel for parties and going through the Trial Court Record, I find force in the submission of learned counsel for appellant. Admittedly, the samples were drawn after breaking small pieces from 08 of the polythene bags which were allegedly kept in a green coloured bag by the appellant in his right hand. The 10 prepared two samples of 25 grams each after taking a small quantity from each of the slabs.
26. Though the settled law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted.
27. For example, if the 08 packets were allegedly recovered from the appellant and only two packets were CRL. APPEAL No. 1027/2015 Page 21 of 30 having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative.
26. Similarly, another coordinate bench of this court in Edward Khimani Kamau v. The Narcotics Control Bureau reported as 2015 SCC OnLine Del 9860 held that transferring the powder of 9 packets into one polyethene and taking two samples and sending one sample to CRCL caused serious prejudice to the case of the appellant as it could not be ascertained whether all the nine packets contained heroin or not.
27. Recently, in Charlse Howell (Supra), 166 polythene strips, allegedly containing heroin, were found stitched in two lehngas. After mixing the substance from all the polythene strips, the samples were sent to CRCL for analysis. While allowing the appeal, it was held that the samples were drawn contrary to the Standing Order 1/88. It was held that the sample was not representative in nature and the test report could not be said to represent the character of entire quantity of powder contained in all 166 polythene strips.
28. To the similar effect is the view of other High Courts in Netram v. State of Rajasthan reported as 2013 SCC OnLine Raj 2892; Ghewar Ram v. State of Rajasthan reported as 2007 (2) Cr.LR (Raj) 1695; Jaswinder Singh and Ors. v. State of Punjab reported as (2013) 1 RCR (Cri) 257; Buta Singh
v. State of Punjab reported as 2017 SCC OnLine P&H 3566 and Chinku CRL. APPEAL No. 1027/2015 Page 22 of 30 Gupta v. State of U.P. reported as 2018 (3) ACR 2714. The reliance placed by learned counsel for the respondent on the decision in Baljinder Singh (supra) is of no avail as the captioned case discussed the scope of Section 50 of the NDPS Act, which is not an issue in the present case. Similarly, the reliance placed on the decision in Sonam Bahadur Gurung v. Union of India passed in C.R.A. No.462 of 2006 decided on 09.09.2009 is again of no help to learned counsel for the accused as in the captioned case, it was observed that the evidence on the method of drawing sample was lacking.
29. Looking at the issue from the aspect of Section 52A of NDPS Act, it is seen that sub-section (2)(c) provides a procedure to be followed by the
I.O. where an application is required to be filed before the Magistrate for the purpose of allowing to draw the samples from the seized substance. Section 52A prior to the Amendment Act 16 of 2014 read as follows: - 52A. Disposal of seized narcotic drugs and psychotropic substances. (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substance, their vulnerability to theft substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official, Gazette, specify such narcotic drugs or psychotropic substance or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drugs or psychotropic substances has been seized and forwarded to the officer in charge of the nearest police station or to the officer empowered CRL. APPEAL No. 1027/2015 Page 23 of 30 under Section 53, the officer referred to in subsection (1) shall prepare an inventory of such narcotic drugs or, psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of,- (a) Certifying correctness of the inventory so prepared; (b) Taking, in the presence of such Magistrate, photographs substances and certifying such photographs as true; or (c) Allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub- section (2) and certified by the Magistrate, as primary evidence in request of such offence.
30. Although in Gurbax Singh v. State of Haryana reported as (2001) 3 SCC 28, the Supreme Court held Section 52 of NDPS Act to be directory CRL. APPEAL No. 1027/2015 Page 24 of 30 but still gave a word of caution that the provisions cannot be ignored by the Investigating Officer. While acquitting the accused for not following the procedure prescribed, it was held as under:
9. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and
57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW 1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyser received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemical analyser. Further, it is apparent that the IO has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the IO, particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW 2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy husk.
31. The apparent conflict in the manner of drawing a sample as provided CRL. APPEAL No. 1027/2015 Page 25 of 30 in Section 52A(2)(c) of NDPS Act on one hand and the Standing Order 1/89 on the other hand came to be considered by the Supreme Court in Union of India (UOI) v. Mohanlal and Ors, reported as (2016) 3 SCC 379 where it was held as under: Seizure and sampling:
12. Section 52-A(1) of the NDPS Act, 1985 empowers the Central Government to prescribe by a notification the procedure to be followed for seizure, storage and disposal of drugs and psychotropic substances. The Central Government have in exercise of that power issued Standing Order No. 1/89 which prescribes the procedure to be followed while conducting seizure of the contraband. Two subsequent standing orders one dated 10.05.2007 and the other dated 16.01.2015 deal with disposal and destruction of seized contraband and do not alter or add to the earlier standing order that prescribes the procedure for conducting seizures. Para 2.2 of the Standing Order 1/89 states that samples must be taken from the seized contrabands on the spot at the time of recovery itself. It reads: 2.2. All the packages/containers shall be serially 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 person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.
13. Most of the States, however, claim that no samples are drawn at the time of seizure. Directorate of Revenue Intelligence is by far the only agency which claims that samples are drawn at the time of seizure, while Narcotics CRL. APPEAL No. 1027/2015 Page 26 of 30 Control Bureau asserts that it does not do so. There is thus no uniform practice or procedure being followed by the States or the Central agencies in the matter of drawing of samples. This is, therefore, an area that needs to be suitably addressed in the light of the statutory provisions which ought to be strictly observed given the seriousness of the offences under the Act and the punishment prescribed by law in case the same are proved. We propose to deal with the issue no matter briefly in an attempt to remove the confusion that prevails regarding the true position as regards drawing of samples. xxx xxx xxx
15. It is manifest from Section 52A(2)(c) that upon seizure of the contraband the same has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered Under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has CRL. APPEAL No. 1027/2015 Page 27 of 30 to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with Sub-section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.
18. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction.
19. There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time frame into the provision, we are of the view that an application for sampling and certification ought to be made without CRL. APPEAL No. 1027/2015 Page 28 of 30 undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by Sub-section (3) of Section 52A ... xxx xxx xxx
31. To sum up we direct as under: 31.1. No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading seizure and sampling. The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order (emphasis added)
32. In the opinion of this court, the procedure adopted by the respondent in the present case for drawing samples neither conforms to the procedure prescribed under Section 52A of NDPS Act nor under the Standing Orders. At the cost of repetition, the respondent neither filed any application before the Magistrate for drawing the samples under his supervision nor followed the procedure of drawing a representative sample outlined in paras 2.4 or 2.5 read with 2.8 of the Standing Order 1/89.
33. Resultantly, this court is of the view that the samples sent to the CRCL were not the representative samples. Besides, by mixing the contents of all the 4 packets before drawing any sample not only the sanctity of the CRL. APPEAL No. 1027/2015 Page 29 of 30 case property in the individual packet was lost but also the evidence as to how much each individual packet weighed. In reaching the aforesaid conclusion, I also draw support from the decisions in Shajahan v. Inspector of Excise (DB) reported as 2019 SCC OnLine Ker 3685 Kulwinder Kumar
v. State of Punjab, reported as 2018 SCC OnLine P&H 1754 and Santosh Kumar v. The State of Bihar passed in Criminal Appeal (SJ) No.158/2016 decided on 30.08.2019.
34. Additionally, it is noted that the two independent public witnesses namely Sher Singh and Pinkesh Kumar, who participated in the raid proceedings and put their LTI and signatures respectively on various documents prepared on the spot were not examined during the trial. As already stated above, in the present case, the prosecution alleged two different recoveries from the appellant out of which, the first recovery was disbelieved by the trial court and the present appeal relates only to the second recovery.
35. Although in the present case, I.O. Sh. G.S. Bhinder, who had initially received the secret information also conducted the subsequent investigation and thus vitiated the whole prosecution in terms of the decision in Mohan Lal v. State of Punjab reported as (2018) 17 SCC 627 but no benefit could accrue to the appellant on this account in view of the subsequent decisions of the Supreme Court in Varinder Kumar v. State of Himachal Pradesh reported as 2019 SCC OnLine SC 170 and Surinder Kumar v. State of Punjab reported as (2020) 2 SCC 563 vide which the applicability of the decision in Mohan Lal (supra) was made prospective.
36. Having gone through the facts of the case and exposition of law CRL. APPEAL No. 1027/2015 Page 30 of 30 referred above, I am of the considered view that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Consecutively, the appeal succeeds and the appellant is acquitted. His bail bonds are cancelled.
37. Accordingly, the appeal is disposed of along with the pending applications.