IMPORTANT POINT
The conviction was overturned due to failure to comply with mandatory procedures under the NDPS Act, specifically Section 52A regarding sample collection.

JUDGMENT :

1. The appellant herein has been convicted and sentenced vide judgment dated 05.10.2023 passed by learned Addl. Sessions Judge No.1, Kotputli, Jaipur in Sessions Case No.31/2019 as below:-

2. The appellant herein has preferred the instant criminal appeal under Section 374(2) Cr.P.C. challenging his conviction and sentence, as mentioned above.

3. With the consent of learned counsel for the appellant and learned Public Prosecutor, the appeal has been heard finally. Therefore, the suspension of sentence application, filed on behalf of the appellant is disposed of.

4. Brief facts of the case are that on 23.12.2018, Shri Suresh Kumar, SI, SHO PS Pragpura along with other staff personnel were on patrolling duty. They left the police station at 3:57 PM. At about 4:40 PM, the police team reached Jogiyo Ka Mohalla, located near Kailash Vidhyapeeth Private school where they saw one person standing in front of one Mahesh General Store. The person was having two white colour polythenes in his left hand and two black colour plastic sacks in his right hand. On seeing the police team, he started fleeing away from there. On suspicion, the said man was stopped immediately and checked. The man became nervous and disclosed that he was having charas, ganja and doda post in the polythene and sacks, being carried by him. He disclosed his name as Mahesh Kumar, appellant herein. He failed to show any license or permit for the contraband recovered from his possession. ASI Rameshwar Singh was sent to bring two independent public witnesses for the purpose of recovery proceedings. At 6:10 PM, he returned to the spot and produced one person Manmohan Yadav as independent public witness to the proceedings. He submits that despite best efforts, only one person was ready to become the witness to the recovery proceedings.

Thereafter, the appellant was apprised about his legal rights regarding personal search under Section 50 of the NDPS Act. As per the prosecution case, contraband charas weighing 1.4 Kgs. was recovered from from the white colour polythene, out of which, two samples (test sample and control sample) of 100 grams each were taken out and same were marked as “A-1” and “A-2” respectively and remaining contraband was put in the same polythene and sealed and thereafter, same was marked as “A”. From the other white colour polythene, contraband Ganja weighing 5.840 Kgs. was recovered, out of which, two samples (test sample and control sample) of 250 Grams each were taken out and same were marked as “B-1” and “B-2” respectively and remaining contraband was put in the same polythene and sealed. Same was given mark “B”. The black colour sacks, carried by the appellant, were also checked. A total of 31.100 Kgs. contraband Dodapost was recovered from the two sacks. The first sack was containing 17.100 Kgs contraband whereas in the other sack, there was 13.400 Kgs. contraband lying. Two samples of 250 grams each (test sample and control sample) were taken out from both the sacks and marked as “C-1”, “C-2”, “D-1” and “D-2” respectively. Remaining contraband were again kept in the same sacks and thereafter, both were sealed and marked as “C” and “D”. The appellant was thereafter arrested in connection with the aforesaid recovery. The police team, thereafter, conducted usual investigation and returned to police station.

5. In connection with the aforesaid recovery, FIR No.527/2018 was registered at Police Station Pragpura for offences under Sections 8/20 and 8/15 of the NDPS Act and investigation commenced. After completion of investigation, the police filed chargesheet fo