TaxTMI 
TaxTMI 
2022 (12) TMI 1435
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.... seizure memo, wherein it has been stated as under: "Before the following witnesses at 1st Floor, H No. RZ-20P/H No. 6, Gali No. Zero, East Sagarpur, two persons from Delhi, Ajit Kumar S/o Sh. Parmeshwar R/o Rasulpur Chhati, Post Chenwa. PS Rasulpur, Distt Chapra, Bihar, Age-26 Years and Laxman Thakur S/o Dharam Thakur R/o Rasulpur Chhati, Post Chenwa, PS Rasulpur, Distt Chapra, Bihar, Age-52 Years were arrested on the basis of mukhbari and searched in compliance with all legal provisions. During the search, person namely Ajit Kumar took off the black pithu bag from the shoulder, which on opening the bag and checking, a total of 6 packets covered with brown color tape were found from the bag and all the packets were found to contain light....
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....to police custody. Seizure has been done Witness: 3. Ct. Radhey Shyam No. 773/Crime, AGS, Crime Branch 4. ASI Randhawa No. 3120/DW, AGS, Crime Branch ASI Pawan Kumar No. 2670/W PIS No. 28900147 AGS Crime Branch, Dwarka" 3. As per the said seizure memo, the 12 Kg Ganja recovered from 6 packets in possession of Ajit Kumar were mixed and also 5 packets of 2 Kgs each found from the applicant were mixed and thereafter were sealed. Thereafter, the samples were taken. 4. Mr. Aggarwal has relied on a judgment of 'Basant Rai vs. State' in Crl. Appeal 909/2005 as well as 'Santini Simone vs. Department of Customs' 5. Per contra, Mr. Chauhan, learned APP has relied on the judgment of Supreme Court titled as 'Sumit Tom....
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.... to 20 years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Merely because different punishments have been prescribed depending on the quantity of contraband, we are satisfied that by mixing the said two bags, the same has not caused any prejudice to the appellant. Even after taking two samples of 250 gm each, the quantity measured comes to 69.50 kg which is more than commercial quantity (small quantity 1000 gm/commercial quantity 50 kg and above). In view of the same, the contention that the police should have taken two samples each from the two bags without mixing is liable to be rejected" 6. I have heard learned counsel for the parties. 7. The judgment of Sumit Tom....
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....e result for heroin. The substances were then mixed properly and weighed with the help of an electronic machine and it was found that the same weighed 1.5 kgs. Thereafter, two samples of 5 grams each were drawn from the recovered substance and put into zip lock pouches. It was contended that the procedure adopted was not permissible. The procedure of transferring the contents of all four packets into one and then drawing a sample from the mixture had caused a serious prejudice, as it could not be ascertained whether the four packets contained the alleged narcotic. The Court found that the procedure adopted fell foul of the Standing Order No. 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau (which was pari materia to Standing Ord....
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....d the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted. 27. For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all maybe of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the ....
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....one sample (in duplicate) shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each packet/container in case of seizure of more than one package/container." 11. The standing order 1/88 mandates that the transferring of content of all packets into one and then drawing a sample from the mixture is not permitted. 12. I am of the view that in the present case, the instructions in 1/88 has not been followed and the sample has been drawn after mixing the contents of various packets into one container. The same has caused serious prejudice to the case of the applicant. Since the collection of sample itself is faulty, the rigours of Section 37 of the NDPS Act will not be applicable. 13. The applicant is in custody sin....