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53. Notwithstanding the averment made in the complaint that the recovery and seizure was done under Section 42 of the NDPS Act, the same is clearly not applicable since the recovery and seizure was done in a public place. Considering the above, the contention that the provisions of Section 42 of the NDPS Act was not complied with, is irrelevant.

54. The next aspect to be examined relates to the testing conducted on the spot and drawing of samples from the charas allegedly recovered from the appellant's trunk. The question to be addressed is whether the samples drawn were representative of the substance recovered from the appellant's baggage. The controversy to be addressed is, essentially, three-fold. The first relates to whether the procedure for drawing samples allegedly followed by the complainant is permissible. Second, whether the substance in all the four pouches was tested prior to it being kept together. Third, whether the contents of the four packets were properly mixed to form a homogeneous mixture and the samples were drawn from the same.

(2009) 12 SCC 161, held that the procedure adopted was not in conformity with the Standing Order 1/88 dated 15.03.1988, issued by the Narcotics Control Bureau.

62. At this stage, it is also relevant to refer to Standing Order 1/1989 dated 13.06.1989, issued by the Department of Revenue, Ministry of Finance, Government of India. The relevant extract of the said Standing Order, which pertains to the procedure to be adopted for drawing samples is set out below:

"Section (II) provides for a general procedure for sampling, storage and reads as under:-
"SECTION (II) - GENERAL PROCEDURE FOR SAMPLING, STORAGE, ETC.
2.1 All drugs shall be properly classified, carefully, weighed and sampled on the spot of seizure.
2.2 All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witness (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot.

80. In his cross-examination, he stated that Mr. Vishal Chettri had also accompanied him to SOOG-2. He had proceeded to the said counter where he had met the appellant, Mr. Anil Kumar and Mr. Pawan Kumar (PW-4). He stated that the first document that was prepared on the spot was a note/document, in respect of the search of the baggage of the accused. However, he did not remember whether it was a single page document or was in duplicate. He also did not remember the contents of the same. He stated that he had tendered his statement before Sh. Kulwinder Singh, the Customs Officer, on that date. He affirmed that in his statement (Ex PW1/E), he had mentioned about the drawing of samples, manner of their sealing and affixing of paper slips, however, on being confronted with the said statement, it was noted that it did not mention any such facts. He was also cross- examined regarding the procedure for withdrawal of the samples and he stated that he was not aware about the procedure for withdrawal of the samples. However, he stated that he was aware of the ION Testing Machine. He did not know the meaning of THC. He did not remember as to when the recovered substance was tested by the IO. However, he affirmed that a test was conducted near SOOG-2. He stated that he was not informed by the Customs Officer about the procedure for withdrawal of samples or testing of the recovered substance. He also did not remember the name or designation of the Customs Officer, who had informed him about the test result of the recovered substance obtained from IONSCAN machine.