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Section 52A.

16. The Central Government in exercise of powers vested under sub-section (i) of Section 52 (A) of the Act, has issued standing order No.1 of 1989, prescribing the procedure to be followed while conducting seizure of the contraband. This standing order succeeds the provision of standing order No. 1 of 1988. Section 2 of the standing order No.1 of 1989 provides for general procedure of sampling and storage etc. as under: -

STANDING ORDER No. 1/89 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 witnesses (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.

19. There is nothing in the prosecution evidence that any of these procedures were followed while drawing samples. There is not even any semblance of any procedure having been adopted for .

drawing a representative sample. This creates a serious doubt on the very legitimacy of the case of prosecution. To have credence, the sample had to be representative sample, of entire 4 Kg 200 Grams of substance, failing which it can be a case of recovery of only 25 gms.

21. In above view of the matter, we propose to examine it from another angle. Though the non-association of independent witnesses is always not fatal to the prosecution case, yet, this aspect gains relevance and importance in case where other available material on record creates suspicion. The time of recovery is somewhere between 10.00 to 10.30 p.m. and the date is 8.5.2008.

Place of recovery is NH-22, Sector-6, Parwanoo which is a busy highway. It is highly improbable that in peak summer month no traffic would be available between 10.00 to 10.30 p.m. on the spot of recovery. It is also not the case that no habitation was available in the near vicinity. That being so, independent witnesses could be associated at least to provide some semblance of fairness in the sampling procedure. We are aware that in chance recovery unless the witnesses are already available before recovery, subsequent inclusion will not be material, however to attach fairness to sampling being done on spot the requirement of independent witnesses cannot be undermined, especially in the facts of the present case.