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Brief facts relevant and essential for disposal of the appeal are noted hereinbelow. The prosecution case is based on the allegation that Shri Saurabh Tiwari (P.W.11), SHO, Police Station Pallu was conducting a Nakabandi on the Arjunsar T- crossing in the night intervening 06.08.2011 and 07.08.2011. At (2 of 7) [CRLA-161/2016] about 01.00 a.m., a blue coloured car was seen coming from towards Sardarshahar. The police team (SHO and the other members of the police station) signaled the driver to stop the car, in which two persons were sitting. However, on noticing the presence of the police party, the car driver tried to take the car away towards Pallu. The car was pursued by the police team. At about 02.00 a.m., when they reached the Johad Payatan Rohi Gulabgarh, the car was seen stalled in the rain water. Its number plate was broken. It was bearing Registration No.HR12-F-6716. The car model was Scoda Octavia. No one was seen inside the car. Search was made for the suspects in the vicinity, but nobody could be found. The car was searched in presence of motbirs and it was found that 8 plastic bags containing poppy straw like substance were concealed therein. All the bags were emptied on a tarpaulin and the contraband was weighed. The gross weight thereof came to be 2 quintal 65 kg. The suspected contraband which was stored in separate bags was mixed up and two samples of 500 gms. each were taken out therefrom. Seizure and sampling procedure was completed. The car and the contraband were taken to the Police Station Pallu, where FIR No.130/2011 was registered for the offence under Section 8/15 of the NDPS Act. The registered owner of the vehicle, namely, Balraj Singh, was given a notice under Section 133 of the Motor Vehicle Act. He divulged that he had sold the vehicle to the appellant herein, whereupon the appellant was arrested and charge-sheet was filed against him in the competent court for the offence under Section 8/15 of the NDPS act. The trial court framed charges against the accused for the offences under Section 8/15 and 25 of the NDPS Act, who pleaded not guilty and claimed trial. The prosecution (3 of 7) [CRLA-161/2016] examined as many as 26 witnesses and exhibited 40 documents in support of its case. Upon being questioned under Section 313 CrPC, the appellant did not dispute the fact that he had purchased the car in question, but he claimed that the car was not in his possession on 06.08.2011 and 07.08.2011 and that he had no connection with the poppy straw seized therefrom. He stated that his known person Sukha Singh had taken the car on the premise that he wanted to visit his relatives. No evidence was led in defence.

Mr. B. Ray Bishnoi, learned counsel representing the appellant, advanced the following arguments for assailing the conviction of the appellant :-

1. That the sampling procedure adopted by the seizure officer Shri Saurabh Tiwari is faulty because instead of taking out separate samples from each bag containing the suspected contraband, the seizure officer mixed the contents of all the bags and collected only two samples from the entire material. He, (4 of 7) [CRLA-161/2016] thus, urges that no inference can be drawn that all the bags seized from the offending vehicle were containing contraband poppy straw. In support of this contention, learned counsel relied upon the judgment of this court in the case of Netram Vs. State of Rajasthan reported in 2014 (2) R.Cr.D. 94 (Raj.).

On these submissions, he urged that the impugned judgment is bad on facts as well as in law and hence, the same deserves to be set aside and the appellant is entitled to be acquitted of the charge.

Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the learned counsel for the appellant. He urged that the sampling procedure (5 of 7) [CRLA-161/2016] adopted by the seizure officer does not lack sanctity and thus, no flaw can be found therein. He further submitted that when questioned under Section 313 CrPC, the appellant admitted ownership of the vehicle in question and offered a frivolous explanation that the car was given to one Sukha Singh on the fateful day. He submitted that if at all the appellant was desirous to prove this defence, then he should have produced evidence to this effect in his defence. As per the learned Public Prosecutor, the only onus upon the prosecution in a case involving the charge under Section 8/25 of the NDPS Act is to establish the fact that the accused was owner of the vehicle, whereafter as per Section 35 read with Section 54 of the NDPS Act, the burden would shift on to disprove that the vehicle was not being used for transporting the narcotics once seizure had been made therefrom. He, thus, sought dismissal of the appeal.

I have given my thoughtful consideration to the arguments advanced at bar and have thoroughly gone through the judgment as well as the record of the case. Upon a careful perusal of the seizure memo (Ex.P/15) and the evidence of the seizure officer Shri Saurabh Tiwari (P.W.11), it is clear that as many as 8 gunny bags were discovered in the offending vehicle in which the suspected contraband was stored. The requirement of procedure as approved by this court in the case of Netram (supra) relied upon by the learned counsel for the appellant is that the seizure officer should collect individual samples from each bag and the procedure of mixing the contents of separate bags and collecting common sample from the mixture is not correct way of sampling in a case involving seizure of narcotics. Thus, the (6 of 7) [CRLA-161/2016] prosecution case suffers from an admitted infirmity regarding the manner in which the samples were collected.