Point of Law: Samples from narcotic drugs and psychotropic substances seized, shall be drawn on spot of recovery, in duplicate, in presence of search witnesses (Panchas).

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 08.09.2017 passed by Learned Additional Sessions Judge, Bhadra, Dist. Hanumangarh in Sessions case No. 31/2016 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 twenty years rigorous imprisonment along with fine of Rs. 2,00,000/-and lesser punishment for the offence under Section 205 of IPC.

3. The wife of the appellant-applicant is present in person before this court and she submits the mandatory provisions of NDPS Act have not been complied with, thus, on this count, the recovery of the contraband is vitiated. Samples from each of the four bags were drawn for testing, however, those samples were mixed together and thereafter, two samples of one kilogram each were sent for FSL. 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 140 kilograms. The appellant has spent last 7 years and 10 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 140 kilograms of poppy husk and the judgment of conviction passed by learned Court below does not warrant any interference. 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 and all the samples were mixed together or intermingled 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 non-compliance 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 Violation Order/ Instruction No.1 of 1989 dated 13.6.1989 issued by the Government of India under Section 52 A of N.D.P.S. Act are of relevance to the present set of facts and are as follows:

2.1 All drugs shall be classified, carefully, weighed and sampled on t