Failure to comply with mandatory sampling procedures under Section 52A of the NDPS Act invalidates the prosecution's case, leading to acquittal.

JUDGMENT :

HON'BLE SAURABH LAVANIA

1. Heard Ms. Azmi Yousuf, learned counsel for the appellant and Shri Ajay Kumar Srivastava, learned A.G.A. for the State.

2. The instant appeal under Section 374(2) has been filed challenging the judgment dated 13.08.2018 passed by learned IIIrd Additional Sessions Judge, Lakhimpur Kheri in Session Trial No. 08 of 2015 arising out of Case Crime No. 219 of 2014 under Section 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "Act") Police Station -Gaurifanta, District -Lakhimpur Kheri whereby the appellant has been convicted and sentenced for a period of twenty years along with the fine of Rs. 1,00,000/-and in default of fine to undergo additional six months' imprisonment.

3. It is to be noted that the appellant was apprehended/arrested on 22.11.2014 and he was never enlarged on bail. In this view of the matter, he has already gone sentence of nine years and six months.

4. The case of prosecution, as per material available on record, is to the effect that on 22.11.2014, the accused/appellant was apprehended by Amresh Vishwas on an information received from the police informant at about 16:45 hours and thereafter the accused/appellant was searched and from his possession 9 kg and 800 gram of charas was recovered. This charas was recovered from the bag which the accused was carrying at relevant point of time, and thereafter, recovery memo was prepared.

5. After completion of necessary formalities, the charge sheet was submitted in Case Crime No. 219 of 2014 under Section 8/20 of the Act which was registered after preparation and submission of report by the concerned Police Officer of the Police present at the site of the crime.

6. Taking note of the material available on record, the trial Court on 15.04.2015 framed charge against the appellant under Section 8/20 of the Act and the said charge was read over and explained to the accused/appellant, who thereafter, denied and upon denial, the appellant was put to trial.

7. To prove it case, the prosecution examined Amresh Viswas/PW-1, Krishna Murari Sharma/PW-2, A.S.I. Ashok Kumar/PW-3, Constable Dev Narain Singh/PW-4 and also placed on record the Fard Baramadgi (Ex. Ka.1), Site Plan (Ex.Ka.2), Charge Sheet (Ex. Ka.3), FSL Report (Ex. Ka.4), Packet(s) found in bag (Ex. Nos. 1 to 5), Plastic Packets(Ex. Ka-7), which were proved by the witnesses named above.

8. In response to the question(s) put to the accused/appellant in terms of Section 313 Cr.P.C., the accused/appellant denied the case of prosecution.

9. Thereafter, the trial court after due consideration of the submissions advanced by the learned counsel for the parties and evidence available on record passed the judgment of conviction, which has been assailed in the present appeal.

10. Impeaching the judgment under appeal, learned counsel for the accused/appellant stated that the prosecution before the trial court failed to prove its case as required under the law. The provisions of the Act and the law on the subject including the mode and the manner prescribed under Standing Order No.1/88 and the Standing Order No.1/89 as also Section 52A of the Act, as explained by various pronouncements, should be followed and any lacunae/variation in the procedure prescribed which was/is mandatory in nature, would be fatal to the case of prosecution. The prosecution was/is under obligation to follow the same for establishing its case beyond doubt.

11. It is also stated that the evidence particularly the samples produced before the trial court along with FSL Report ought not to have been considered by the trial court in absence of sample prepared and report obtained in terms of Standing Orders and Section 52A of the Act.

12. It is stated that as per Standing Orders on the subject and Section 52A of the Act, the samples were not taken. In this case, five packets were recovered from the bag of the accused/appellant, as per the case of prosecution, and from the said given packets, one sample of 100 gms. w