Point of Law: 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.

ORDER :

1. Lawyers are abstaining from appearance before the court.

2. The instant application for suspension of sentence has been moved in connection of the judgment impugned dated 18.02.2017 passed by Learned Special Judge, NDPS Act Cases, Jodhpur in Sessions case No. 58/2015 whereby the accused appellant has been convicted for the offences punishable under sections 8/15 of NDPS Act and he has been sentenced with maximum of ten years rigorous imprisonment along with fine of Rs. 1,00,000/-.

3. The son of the appellant-applicant is present in person before this court and he submits the mandatory provisions of NDPS Act have not been complied with, thus, on this count, the recovery of the contraband is vitiated. The bags were emptied upon the tarpaulin and weighed together. The total weight of the admixture was 98 kilograms; out of which, two samples of one kilogram each, marked A (chemical sample) and B (control sample),were taken from the seized contraband for investigation and rest of the contraband was re-packed. Since samples from each of the bags were not separately sent for testing, it cannot be said with utmost certainty that each of the bags contained poppy husk and that the quantity of the recovered contraband is 98 kilograms. The appellant has spent last 07 years and 06 months in custody, if he is not released on bail the very purpose of filing the appeal would be frustrated.

4. Per contra, learned Public Prosecutor vehemently opposes the prayer made by representative for the accused-appellant and submits that the matter pertains to recovery of 98 kilograms of poppy husk and the judgment of conviction passed by learned Court below does not warrant any interference. As per the custody certificate submitted by learned Public Prosecutor, the appellant has suffered imprisonment for almost 7 years and 6 months. The impediment contained under Sections 32-A and 37 of NDPS Act will be attracted in the factual situation of the present case.

5. Heard and perused the material available on record as well as gone through the statutory provisions applicable in the matter.

6. After consideration of the submissions and careful scanning of the record, more particularly the seizure memo, it is observed that no separate sample from each bag was taken instead the bags were emptied upon the tarpaulin and were mixed together and samples were drawn from that admixture, therefore, the possibility cannot be ruled out that some of the bags may be filled with contraband and rest may be filled with neutral substances. It cannot be presumed without solid evidence that all the bags contained contraband. Since the doctrine of beyond reasonable doubt is applicable in criminal matters, therefore, even the initial duty lies upon the prosecution to show that the appellant-applicant was having contraband in all the bags.

7. This Court is cognizant of the provisions contained in Section 32-A and 37 of the NDPS Act but considering the submissions made by representative of the accused-appellants regarding noncompliance of statutory procedure and keeping in mind the fact of subjection of accused to long period of incarceration pending appeal, this court is of the opinion that it is a fit case for suspending the sentence awarded to the accused appellants.

8. This court has passed a detailed order in this context in S.B. Criminal Misc. 3rd Bail Application No. 1162/2022; Ram chandra v. State of Rajasthan, wherein the rules pertaining to sample collection contained in Standing Order No. 1/1989 dated 13.06.1989 issued by Government of India under Section 52A of NDPS Act have been enumerated inter alia other aspects. The relevant part of the said order is as under:-

“4. Heard learned counsel for the petitioner and learned public prosecutor. Perused the material available on record. The argument that collection of samples was not proper and in accordance with the procedure of sampling as per Standing Order No. 1/1989 seems to be worth considering. Clause 2.1 to 2.8 of the