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2020 (7) TMI 354 - HC - Indian LawsSmuggling - Drug Trafficking - Heroin - Contraband Item - illegality while drawing samples from the seized substance - whether the procedure specified under the Standing Orders can be flouted? - HELD THAT:- A combined reading of paras of the Standing Orders would show that where more than one container/package is found, the respondent is required to draw a sample from each of the individual container/package and test each of the sample with the ‘field testing kit’. It is further provided that if the container/packages are identical in shape, size and weight then lots of 10 or 40 containers/packages may be prepared and thereafter representative samples from each container/package in a particular lot are to be drawn, mixed and sent for testing - Mixing of the contents of container/package (in one lot) and then drawing the representative samples is not permissible under the Standing Orders and rightly so since such a sample would cease to be a representative sample of the corresponding container/package. In the present case, four packets containing suspicious powdery substance were found concealed in a ‘stroller bag’. On testing with the ‘field testing kit’, the powder in each packet tested positive for heroin. The I.O., without weighing the contents of each individual packet, mixed the powder from all the 4 packets in one polythene bag and then drew the sample from the mixture - In the opinion of this court, the procedure adopted by the respondent in the present case for drawing samples neither conforms to the procedure prescribed under Section 52A of NDPS Act nor under the Standing Orders - At the cost of repetition, the respondent neither filed any application before the Magistrate for drawing the samples under his supervision nor followed the procedure of drawing a representative sample outlined in paras 2.4 or 2.5 read with 2.8 of the Standing Order 1/89. This court is of the view that the samples sent to the CRCL were not the representative samples. Besides, by mixing the contents of all the 4 packets before drawing any sample not only the sanctity of the case property in the individual packet was lost but also the evidence as to how much each individual packet weighed - the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Consecutively, the appeal succeeds and the appellant is acquitted. His bail bonds are cancelled.
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