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Submissions on behalf of Applicant

7. Improper Sampling: Counsel for applicant contended that sampling procedure followed by the Customs Officers was improper, in that the manner in which the samples were drawn was not in accordance with law. It was submitted that the recovered capsule was cut open and some off-white powdery substance was found inside them and thereafter, all 107 capsules were cut open with blade, each capsule was found to have heroin and the contents of all the capsules were put in a transparent plastic box and sample was taken from the mixed contents of all the capsules. It was further submitted that samples were not taken from each capsule and weight of each capsule was not taken, which is in violation of the procedure prescribed by law.

Sampling Procedure

17. The first objection has been taken of the sampling procedure where all 107 capsules were cut open and the contents were mixed together. Petitioner's contention being that mandatory provisions of sampling procedure under Section 52A, NDPS Act were not complied with.

18. Prior to 23rd December 2022, when the Standing Order ["SO"] issued by Ministry of Finance came into the picture (issued under Section 76 read with Section 52A, NDPS Act), seizure and sampling guidelines which regulated the process were resident in SO 1/88 [issued by the Narcotics Control Bureau] and SO 1/89 [applicable from 13th June 1989 issued by Government of India, Ministry of Finance]. SO 1/89 was promulgated in exercise of powers conferred by Section 52A(1), NDPS Act dealing with disposal of seized narcotics. It primarily provides for a regime of proper disposal of drugs as envisaged under Section 52A. While Section I provides a list of drugs meant for disposal, Section II provides the general procedure for sampling, storage etc., Section III is for receipt of drugs in godowns and the procedure to be followed while Section IV for actions to be taken for pre-trial disposal. The sequential flow, therefore, in essence, is as under:

21. Yet another view has been taken by this Court in Quentin Decon v.

Customs, 2023:DHC:3897; Somdutt Singh @Shivam v. Narcotics Control Bureau, 2023:DHC:8550; and Sovraj v. State Govt. of NCT of Delhi, 2024:DHC:5009 holding that non-observance of procedure would not vitiate trial and the accused would have to show prejudice. The view is formed on the basis that if the contraband is retained and not disposed of, the primary evidence would still be available. The sum and substance of all these decisions, though sometimes not fully reconcilable, revolves around proper procedure of seizure and sampling which ought to be undertaken by the prosecution, which does not cause any prejudice to the accused.