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18. PW- Jai Singh also examined at the trial by the prosecution, inter alia, deposed that he was posted as Naib Tehsildar, Kathua, and SI Rajesh Kotwal of Police Post, Hatli brought two packets bearing Mark 'A' and 'B' and he sealed both the packets by putting two seals on the said marked packets besides keeping a seal impression on a separate paper under his attestation. He further deposed that he does not know what was inside the sealed packets.

PW-Baldev Singh and the Jai Singh have given lie to the prosecution version of the case to the effect that sampling was done as per the procedure. PW-6, Baldev Singh says at the trial that firstly Mohd Saleem was handed over the sealed sample packets for taking the same to the Executive Magistrate Office i.e. PW-7 who brings back the samples on the same day and thereafter Head Constable Mohinder Singh, takes the said sample packets on 8th November, 2013 to the office of the PW-7 and gets the same sealed.

19. PW-7, Executive Magistrate has himself deposed at the trial that he impressed his seal on the sample packet without knowing as to what was inside them.

Thus, it is clear from the prosecution case that the sampling of the seized psychotropic substances i.e., spasmo proxyvon tablets was not done as per the procedure. The same is a fatal flaw in the prosecution version of the case.

It is an admitted case of the prosecution that 20 numbers of capsules were taken from each the bag and packet and sealed in separate plandas bearing Mark 'A' and 'B'. It was none of the job of even the Investigating Officer to separately seize and pack some of the recovered quantity for sampling purpose. As per the procedure, the seized material, as a whole, was to be taken before a Magistrate and it was his affair to reopen the seized material and take the sample from the same and then to reseal the packets separately.

20. Sampling and resealing of the seized narcotic drugs or psychotropic substances or of some manufacture drug containing the aforesaid drug/substances in mixture is an important step/phase in the investigation process in NDPS cases. It is not appropriate even for the Investigating Officer to separately seize some quantity of the recovered drug/substances as sample but the proper procedure is that the Investigating Officer has to seize the recovered drug/substances or the manufactured drug containing the aforesaid substances in one pack/palanda or more packs/palandas having regard to the quantity of the recovered contraband and to produce the same before a competent officer especially an Executive Magistrate for sampling purpose who shall break the packets /palandas in comparison of the relevant memos and then to take the sample there from and thereafter reseal back all the packets under his seal and signature. As per the provisions of Section 52 and 52-A of the NDPS Act, once any contraband is seized, it shall be immediately produced before the competent Magistrate for disposal and sampling. There cannot be two provisions for drawing of samples, one, whether the Investigating Officer draws the samples on spot and the other one taken in presence of the Magistrate.

The Hon'ble Apex Court has followed the law laid down in Mohan Lal's case supra in Mangilal Vs. the State of Madhya Pradesh (2023 Live Law (SC) 549 and Yusuf @ Asif vs. State 2023 Live Law (SC) 890.

23. In the case in hand, what appears to have been done in the name of sampling, is that firstly, 20 capsules taken from each of the bag and packet recovered from the respondents, were seized in two packets marked as 'A' & 'B' as being samples. Secondly, the said packets bearing Mark A & B are reported to have been presented before the Executive Magistrate by some police personnel not being the Investigating Officer of the case and the concerned Magistrate, as per the prosecution case itself simply affixed his seal on the said marked packets without reopening the same, enlisting the samples and certifying the correctness of the same. The said procedure appears to have been adopted in violation of the provisions of Section 52- A of the NDPS Act.