Substantial compliance with NDPS Act's sampling provisions is sufficient if the prosecution establishes possession of contraband, even if sampling was done before an Executive Magistrate.

JUDGMENT :

(Gautam Kumar Choudhary, J.)

Sole appellant is in appeal before this Court against the judgment of conviction and sentence under Sections 20 and 22 of N.D.P.S. Act.

2. Informant of this case is a Police Officer who was on patrolling duty on National Highway No.143 when a secret information was received that a Bolero vehicle bearing registration no.6094 of Orissa was coming with a driver and two persons. As per the information, the vehicle was in transit, transporting some contraband. On this information, at 12:45 p.m. on 25.04.2017, police organized search of vehicles with CRPF personnel at Pandripani Chowk. The said vehicle was intercepted and the occupants of the vehicle started fleeing, but got arrested, they disclosed their names as Munna Kumar, Aditya Kumar and Chandan Kumar.

3. Thereafter, search of the vehicle was made in presence of Block Development Officer and from the said vehicle, 75 packets each containing 1 Kg Ganja were seized, as the occupants of the vehicle could not produce any valid document with regard to the seized contraband. All the three persons were arrested. They disclosed that they were paddling cannabis from Orissa to Bihar. Vehicle was being driven by Aditya and the owner of the vehicle was Sunil Sah, who was involved in trafficking of narcotics along with one Nitish Kumar.

4. On the basis of the self-statement of the Officer-in-charge of T. Tangar Police Station, P.S. Case No. 23/17 was registered against this appellant and five others under Section 414/34 of the IPC and Sections 8, 20 and 22 of the NDPS Act.

5. Police on investigation, submitted charge sheet against this appellant and two others under Sections 20 and 22 of the NDPS Act.

6. Altogether 11 witnesses have been examined on behalf of the prosecution and relevant documents including the seizure list and FSL reports have been proved and marked as exhibits.

7. Judgment of conviction and sentence has been assailed on the ground that as per the prosecution case, 75 packets each containing 1 Kg. of Ganja were seized, but as per B.D.O (P.W. 9), in whose presence the said seizure is said to have been made, the sample was taken only from 6 packets and not from all packets. Further, weight was also taken of only one packet and therefore, it cannot be said that there was Ganja in all the packets. P.W. 10 has also deposed in para 18 of his cross-examination that sample was not collected from all the packets.

8. It is further argued that there is violation of the mandatory provisions of search, seizure and sampling. As per Section 52A of the NDPS Act, the sample have to be drawn in the presence of a Magistrate and the entire exercise certified by him to be correct. Magistrate means a ‘Judicial Magistrate’. A clarificatory notification dated 23.12.2022 of the Ministry of Finance is referred to in this context. Reliance is placed on the following authorities:

a. Simarnjit Singh Versus State of Punjab, 2023 SCC OnLine SC 906

b. Mohan Lal v. State of Punjab, (2018) 17 SCC 627

9. Learned A.P.P. has defended the judgment of conviction and sentence. It is argued that facts of the present case are distinguishable from Simarnjit Singh case (supra) as in that case sample was drawn at the time of seizure, which was found to be not in conformity with the law laid down in Mohan Lal Case (supra). Whether the search is vitiated on account of search having been made in the presence of the Executive Magistrate, was not an issue in that case.

10. It is further argued that factum of seizure of 75 Kg. of Ganja has been established by the consistent account of the witnesses. Informant (P.W. 10) has deposed that on the basis of secret information that Bolero vehicle bearing registration no.OR 9J 6094 transporting contraband from Orissa to Simdega, the vehicle was intercepted. The appellant was travelling in the said vehicle and he was apprehended by the police party. He disclosed about trafficking of narcotics from Orissa to Bihar. Seizure was made in the presen