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7. On sampling procedure, counsel for the applicant relied upon Standing Orders 1/88 and 1/89, to contend that in case of many pouches, lots of 10 have to be made and two samples from each ought to be collected. It is contended that the inventory was not made and the applicant relied upon in decisions of this Court in Amina v State (NCT of Delhi) 2023 SCC OnLine Del 3491 and Betty Rame v Narcotics Control Bureau 2023 SCC OnLine Del 3279. It was noted that a contrary opinion was taken in Sovraj v State 2024 SCC OnLine Del 4732 being that these issues are procedural and shall be considered at the time of trial. Counsel for the applicant stated that this was an erroneous interpretation in terms of para 87 of Noor Aga v State of Punjab (2008) 16 SCC 417 and Union of India v Bal Mukund (2009) 12 SCC 161. The opinion taken in Sovraj (supra) in para 92, that the non-compliance of Standing Orders can be overcome by the prosecution by producing evidence to the contrary at the stage of trial, was wrong. According to the counsel for the applicant, it has to be assessed whether substantial compliance has been done or not, and if not, benefit accrues to the applicant and if there is total non-compliance, then it definitely accrues to the applicant. The evidence cannot be improved during trial and if a prima facie opinion on reasonable doubt has been taken at this stage itself, then bail ought to be given. The sample, therefore, which has been assessed, is not a true sample.

Sampling Procedure

12. The first objection is regarding the sampling procedure where applicant contends that mandatory provisions of sampling procedure under Section 52A of NDPS Act were not complied with. In the present case, the seizure was made on a railway platform in Bengaluru, where a total of 57 packets were found to be in possession of both applicant and co-accused Chima while they were boarding the train. Out of these, 33 packets were found from the first polythene bag recovered from the applicant and 12 packets were found from the second polythene bag recovered from the applicant. The remaining 12 packets were recovered from the third polythene, in possession of co-accused Chima. As per seizure memo dated 9th December 2020, cardboard boxes were found in the polythenes carried by the accused and upon opening such boxes, transparent pouches were retrieved, containing crystal white substance. These pouches were opened and weighed on a cloth and the total weight was found to be 10.5 kg. From that substance, two samples of 250 gms each were drawn, kept separately in two plastic containers and which were sealed and marked S-1 & S-2. It would have to be seen whether, the process adopted of mixing all the samples at the spot recovered from the packets, would cause any prejudice to the accused.

14. SO 1/89 was promulgated in exercise of powers conferred by Section 52A(1) NDPS Act dealing with disposal of seized narcotics and 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: