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9. PW6 Sh. M.L. Meena, Senior Scientific Officer, FSL, Rohini has proved the report prepared by him with respect to the analysis conducted by him of the sample mark A sent to FSL during investigation. The said report has been exhibited as Ex. PW6/A and as per the said report, the sample Mark A was found to contain diacetylmorphine, paracetamol and caffeine, the percentage of diacetylmorphine to be 10.56%.

10.PW7 Duty officer HC Jagmohan has interalia deposed that he was the duty officer on 24/9/2011 and that on this date he had received the rukka of the present case through Ct. Yogesh and had registered the FIR, Ex.PW7/B and had made endorsement in this respect, Ex.PW7/D and had also recorded DD no. 21 and 23, Ex.PW7/A and PW7/C, in this respect.

18.On behalf of the State, Ld. APP has submitted that the deposition of the prosecution witnesses and the documentary evidence proved on record sufficiently prove that the accused persons were apprehended and and the contraband was recovered from them in the manner as alleged by the prosecution.

19.On the other hand Ld. Defence Counsel has inter alia made the following contentions:

• No genuine efforts were made by the Investigating Officials to join any independent public witness despite the fact that the accused persons were assertedly apprehended from outside the Gol Dak Khana gate and that this failure itself should be held fatal to the case of the prosecution. • The accused cannot at all be convicted for having been found in possession of 1.2 kg. of heroin because though as per the case of the prosecution 20 packets containing some powder were recovered from the accused, none of the individual packets were weighed or tested and that the samples were drawn out only after the powder from all the 20 packets was mixed State vs. Richard Nwafer and Anr. SC No. 03/12 together and that therefore it cannot at all be held that all the 20 packets assertedly recovered from the possession of the accused contained a contraband, more so in view of the FSL report proved on record which shows that only about 10 per cent of the sample sent to FSL was found to be diacetylmorphine and the remaining was found to be only caffeine and paracetamol.

State vs. Richard Nwafer and Anr. SC No. 03/12 In para 10 of its judgment, the Apex Court took note of the standing instructions no.1/88 issued by the NCB and observed that the said instructions (clause 1.7 (e)) clearly laid down that while drawing out the sample from a particular lot, it must be ensured that representative drug in equal quantity is taken from each packet/container of that lot and mixed together to make a composite whole from which the samples should then be drawn for that lot. In para 39 of its judgment, the Hon'ble Supreme court took note that the seizing officer had taken only 25 gm each from all the 5 bags and then mixed them and sent them to the laboratory and had thereafter held that the said quantity was not an adequate quantity and that the requirement of law as laid down in the standing instructions had not been met. Similarly in another case titled as Gaunter Edwin Kircher Vs. State of Goa 1993(3) SCC 145, the Hon'ble Supreme Court emphasised the importance of sending representative samples of the recovered cannabis substance by laying down that from each of the packets of pieces recovered, sufficient quantity by way of samples must be sent for chemical examination. The aforementioned judgments have been followed by the Hon'ble Delhi High Court in its recent judgment dated 02.07.2012 pronounced in the case titled as Basant Rai Vs. State in criminal appeal no.909/2005 to hold that drawing out of samples of mere 25 gm each from each of eight State vs. Richard Nwafer and Anr. SC No. 03/12 of the polythene bags allegedly containing cannabis substance, is not at all sufficient. In the said case, the Hon'ble Delhi High Court has held that where proper procedure for drawing out the samples has not been followed by the investigating agency, the benefit of doubt will have to be given to the accused. The Hon'ble High Court, in the said judgment, in para 27, took an example that if out of 8 packets that are allegedly recovered from an accused, only two packets were having contraband and the rest six packets were not having any contraband, the action of the IO of mixing the substance of all the 8 packets and then drawing out the samples will lead to an incorrect result, the benefit of which will have to be given to the accused. Now in the present case also though as per the deposition of the investigating official IO SI Satyawan, there were 20 different parcels recovered from the 20 bicycle seats, he did not separately weigh the packets nor did he draw out separate samples from each of the packets and on the contrary mixed the substance from all the packets together and then drew out two samples therefrom. The said procedure is completely improper as held by the Hon'ble Delhi High Court in the aforementioned case and may have led to an incorrect result. Further admittedly in the present case the IO SI Satyawan did not even bother to check the substance in all the packets with the field testing kit. As per his own deposition this IO had cut open the polythenes that were State vs. Richard Nwafer and Anr. SC No. 03/12 recovered from each of the bicycle seats and had collected the powder contained in all the said polythenes, in one another transparent polythene and only thereafter had tested the said mixture with the help of field testing kit and had thereafter drawn two samples of 5 gm each to be sent for analysis to the FSL. In view of such facts and the judicial dicta referred to hereinabove the contention of the defence counsel Sh. Khanna that the possibility that all the packets did not contain diacetylmorphine cannot be ruled out, has to be upheld, more so when as per the FSL report itself the sample sent to it was found to contain not only diacetylmorphine but also caffeine and paracetamol.