ORDER :

Farjand Ali, J.

The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 29.09.2022 passed by the learned Special Judge, NDPS cases, No. 2, Chittorgarh in Sessions Case No.26/2017(11/2015) whereby he was convicted and sentenced to suffer maximum imprisonment of 14 years under Section 8@15¼x½ and lesser punishment for the other offences under Sections 3 /25(1-B)(a) of ARMS ACT .

2. Briefly stated, the facts of the instant case are that a car was intercepted by the police at the time of 'nakabandi' near mangalwad chauraha on 24.08.2014 at about 09:50 P.M. The petitioner tried to turn his car (RJ27 UA 7484) around so as to flee from that area. Upon suspicion, the police officers searched the vehicle and during search, total seventeen bags of poppy husk were found in the car containing a total of 436 kilograms of Poppy husk which was seized by the police and the seizing officer took 100 grams of poppy husk from each bag for sampling respectively; all the samples of 100 grams each collected from separate bags were mixed together in a single bag and thereafter, two samples of 500 grams each were taken from the aforesaid admixture.

3. Learned counsel for the appellant vehemently submits that the mandatory provisions of NDPS Act have not been complied with, thus, on this count, the recovery of the contraband is vitiated. During search, total 17 bags of poppy husk were found in the bolero; small quantities of 100 grams were drawn from each of the bag and then from the mixture of these small quantities, two samples of 500 grams each were drawn for scientific investigation. The total weight of the admixture was 436 kilograms; out of which, two samples of 500 grams each, marked A (chemical sample) and B(control sample), were taken from the seized contraband for investigation and rest of the contraband weighing 435 kilograms was re-packed into different bags. The samples of contraband were not collected individually from the seventeen jute bags for investigation as per the stipulations in the Standing Instruction No.1/89 issued by the N.C.B., New Delhi. As individual weight of all the bags is known and samples from each of the seventeen jute bags were not drawn 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 436 kilograms. As the hearing of the appeal will take long time to conclude, therefore, learned counsel for the appellant submits that the sentence awarded to the accused-appellant may be suspended.

4. Per contra, learned Public Prosecutor vehemently opposes the prayer made by learned counsel for the accused-appellant and submits that the matter pertains to recovery of 436 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. After thoroughly evaluating the record and considering the overall submissions, it is observed that there is an inadequate proof to assume that all of the bags carried contraband poppy husk. The prosecution has the initial burden of proving that the appellant-applicant had contraband in every bag since the doctrine of beyond reasonable doubt applies in criminal cases. All of the samples were blended and no individual sample was taken from each bag for investigation, therefore, the possibility cannot be ruled out that some of the bags may be of contraband and rest may be filled with neutral substances.

6. This Court is aware of the provisi