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17. Before appreciating the rival contentions of the parties, profitable would it be to refer to Section 52A of the NDPS Act, as well as the law which has been laid by the Hon'ble Supreme Court and by this Court in respect of the procedure of sampling. Section 52A of the Act reads thus:

"52-A. Disposal of seized narcotic drugs and psychotropic substances.(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.

18. The Hon'ble Supreme Court in the case of State of Punjab v. Balbir Singh3 in the context of an argument as to the defect in the sampling (1994) 3 SCC 299.

procedure so adopted observed that Sections 52 and 57 of the Act contain procedural compliances which are to be adhered to but if there is no strict compliance of the above noted provisions, that by itself cannot render the acts done by the officers of the respondent as null and void, if there is sufficient material against the accused. At the most, a flaw in the sampling procedure may affect the probative value of the evidence. At the same time, the Hon'ble Supreme Court also observed that the provisions are directory in nature, therefore, the Court is bound to examine the prejudice which shall be caused to the petitioner and consequent failure of justice due non- compliance. The relevant paragraph of the judgment of the Supreme Court reads thus:

(Emphasis supplied)

19. Reference may advantageously be had to the observations of a Co- ordinate bench of this Court in Bipin Bihari Lenka v. Narcotics Control Bureau4 as well, wherein this Court has held that any prejudice which allegedly has been caused to the accused as a consequence of any defect in the sampling procedure so adopted can be appreciated after the examination of the witnesses. The relevant paragraph of which reads as under:

21. The principle which emerges from the above judgments is that the process of sampling has to be in accordance with Section 52A of the NDPS Act. Any deviation so made in the sampling procedure, shall not ipso facto lead to grant of bail to the accused. At the same time the officers of the respondent cannot completely violate or ignore the provisions of the Act, the Rules framed thereunder or the standing orders. However, any defect alleged to have occurred in the sampling procedure should be egregious and should prima facie cause an irreparable prejudice to the accused.