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Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the appellant and urged that the appellant Nagu Singh himself was present in the premises when seizure was effected. The key of the small room from which, the contraband poppy straw was recovered, was supplied by the appellant to the Seizure Officer. The Seizure Officer had no animus against the appellant and thus, the defence plea that the appellant had been falsely implicated in this case is per se untenable. As regards, the argument advanced by Shri Rathore regarding the non-exhibition of the muddamal in the court, learned Public Prosecutor candidly conceded that the muddamal could not be produced in the court because the same was destroyed by flooding as it was lying in an underground godown in the old Police Station. He urged that the specimen samples and the remainant of the contraband collected by the Seizure Officer during the sampling procedure were duly proved at the trial and consequently, the inability of the prosecution to exhibit the muddamal is of no consequence whatsoever as no prejudice was caused to the appellant thereby.

Now coming to the second argument regarding the sanctity of the seizure in absence of the muddamal being exhibited in the court as well as the sampling procedure adopted by the Seizure Officer. Two fold contentions were advanced by Shri Rathore in this regard. The first argument was that the sampling procedure adopted by the SHO Shri Rajiv Joshi was faulty and not as per law. As per Shri Rathore, since, the contraband was packed in 5 separate bags, the Seizure Officer was required to collect separate and distinct samples from each bag. The procedure of taking out small quantities of the goods from each bag, mixing them and then preparing a representative sample, was not the correct way of sampling as per Shri Rathore.
For appreciating this argument, contents of the seizure memos exhibited by the Seizure Officer Rajiv Joshi P.W.9 as Ex.P4 and Ex.P19 need to be gone into. On going through the seizure memo, it is evident that the same are printed proformas in which blanks have been filled in. The detail of the sampling procedure adopted by the Seizure Officer is not narrated in the seizure memos prepared at the time of seizure. All that is mentioned in the seizure memos is that 5 gunny bags containing poppy straw weighing 200 Kgs. were seized from the house of Nagu Singh. Three packets were prepared from the said gunny bags viz. two samples marked 'A' and marked 'B' and the remainant sample marked 'C'. It is nowhere described in this seizure memo that the Seizure Officer collected 500 gms. of poppy straw from each gunny bag and prepared representative samples therefrom. Thus, the evidence of the Seizure Officer as regards the manner of drawing samples comes under a cloud of suspicion. The seizure memo does not even reflect that after collecting the samples the remaining contraband was sealed and chits marked thereupon. The specimen memo of seal was prepared by the Seizure Officer on 26.4.2006 at 1.30 PM. In the said specimen memo, it is narrated that 500 gms. of poppy straw each was collected from the 5 gunny bags and a total of 2500 gms. of poppy straw was mixed. Two samples of 500 gms each was prepared from the mixture and marked as 'A' and 'B'. The remaining 1.500 kgs. admixture was packed in the packet marked 'C'. Numbers "1 to 5" were appended on the gunny bags of poppy straw left behind after collecting the samples. Even in this specimen seal memo, it is not mentioned that the five bags containing the remaining contraband were sealed and chits bearing the signatures of the motbirs, accused and the Seizure Officer were appended thereupon. Thus, from these documents, which are the primary documents of seizure, serious doubt is created as to whether the muddamal contained in 5 gunny bags was even sealed or not. This Court examined the sanctity of the procedure of drawing representative samples from multiple packets of contraband narcotics in the cases of Jagdish Chand Vs. State of Rajasthan reported in 2014(1) Cr.L.R. (Raj.) 91and Jasmer @ Bachchi & Ors. Vs. State of Rajasthan reported in 2014(1) Cr.L.R. (Raj.) 199 and held that the procedure of collecting small quantity of the contraband narcotics from separate bags mixing them and then preparing samples is not the appropriate procedure to be adopted in such cases. The Seizure Officer should collect and prepare separate samples from each of the separate bags containing the contraband. Thereafter, he should append the seals and affix appropriate identifying chits bearing the signatures of the panchas, the accused and of his own thereupon. Seen in light of the ratio of the abovementioned judgments of this Court in the cases of Jagdish Chand and Jasmer (supra) and keeping in view the flaws noticed by this Court in the prosecution evidence regarding the manner of preparing the samples, this Court is of the opinion that the prosecution miserably failed to prove that appropriate sampling procedure was adopted by the Seizure Officer Shri Rajiv Joshi while conducting the seizure in question. Thus, the FSL report cannot be read in evidence against the accused.

In view of the discussion made above, this Court is of the opinion that firstly, the prosecution failed to prove that appropriate sampling procedure was adopted by the Seizure Officer, and secondly, it also failed to lead primary evidence of the seizure.

Thus, the conviction of the appellant as recorded by the trial court vide the impugned judgment cannot be sustained on all the above counts.

Consequently, the appeal deserves to be and is hereby allowed. The impugned judgment dated 30.6.2015 passed by the learned Special Judge (NDPS Act Cases), Pratapgarh convicting and sentencing the appellant for the offence under Section 8/15 of the NDPS Act is declared to be bad on facts as well as on law and is set aside. The accused is acquitted of the charge. He is in custody for the last more than seven years. He shall be set at liberty forthwith if not wanted in any other case.