1. The appellants – Sukh Preet Singh @ Kala and Gurpreet Singh have preferred S.B. Criminal Appeal No. 953/2016 under Section 374(2) Cr.P.C against impugned judgment & order dated 11.03.2016 passed by Special Judge, N.D.P.S. Cases, Hanumangarh in Sessions Case No. 9/2014 (State of Rajasthan Vs. Sukh Preet Singh @ Kala & ors.), whereby the accusedappellants were convicted for the offence under Section 8/15(c) of the N.D.P.S. Act, 1985 and sentenced to undergo 10 years rigorous imprisonment with fine of Rs. 1,00,000/- each and in default of payment of fine, to further undergo 1 year additional rigorous imprisonment, whereas, the State has preferred S.B. Criminal Appeal No. 478/2016 under Section 378(iii) & (i) Cr.P.C. against acquittal of the accused Jasvinder Singh @ Chhinda by same judgment impugned, for the offences under Section 8/15 read with Sections 25 & 29 of the N.D.P.S. Act.

2. As per the prosecution story, on 08.08.2013, S.H.O., Police Station Tibbi, District Hanumangarh (P.W. 9 – Swarndas) received an information that two suspected cars viz. Esteem Car No. PB60-6999 and Indigo Car No. DL-1-C-9911 had passed from Hanumangarh side and he was asked to conduct Nakabandi along with police team, upon which, Nakabandi was made by the police at Tandoorwali Circle. During Nakabandi, two cars Indigo and Esteem came there, which were taken in control. In Esteem Car No. PB-60-6999, two persons were found sitting, who on asking, disclosed their names as Sukh Preet Singh @ Kala and Gurpreet Singh (appellants herein). During search of the car, total 15 plastic bags were found on the back seat of the car. On examining it, the same were found to be poppy straw, upon which samples from each bag were separated and after mixing it, one sample in duplicate of 1 kg. each was drawn, which was sealed in two separate bags. After preparation of memos, an F.I.R. No. 178/2013 was registered at Police Station Tibbi, District Hanumangarh for the offence under Section 8/15 of the N.D.P.S. Act. After necessary investigation, charge-sheet was filed against Sukhpreet Singh @ Kala and Gurpreet Singh (appellants herein), for the offence under Section 8/15 of the N.D.P.S. Act, 1985 and against co-accused Gurcharan Singh @ Charna for the offences under Sections 8/15 & 8/29 of the N.D.P.S. Act, 1985. Subsequently, the supplementary charge-sheet was filed against co-accused Jasvinder Singh @ Chhinda for the offences under Sections 8/15, 25 & 29 of the N.D.P.S. Act, 1985.

3. On charges being framed, all the four accused pleaded not guilty. The prosecution in support of its case got examined total 9 witnesses and certain documents were exhibited as Ex.P/1 to Ex.P/39. In the examination under Section 313 Cr.P.C., accused denied the evidence produced against them. The accused got examined two witnesses and document were exhibited as Ex.D/1 to Ex.D/7 in their defence.

4. The trial court after hearing the parties, passed impugned judgment dated 11.03.2016 convicting and sentencing the appellants Sukhpreet Singh @ Kala and Gurpreet Singh for the offence under Section 8/15(c) of the N.D.P.S. Act, 1985 and acquitted the accused Gurcharan Singh alias Charna and Jasvinder Singh @ Chhinda from all charges levelled against them. Aggrieved with impugned judgment of conviction, the appellants have filed Criminal Appeal No. 953/2016, whereas, the State has filed Criminal Appeal No. 478/2016 against the order of acquittal qua accused Jasvinder Singh @ Chhinda.

5. Heard learned counsel for the parties and perused the record of the case as well as judgment impugned passed by the trial court.

6. Learned counsel for the appellants in Criminal Appeal No. 953/2016 has limited his arguments regarding illegal and improper sampling of contraband alleged to be recovered in the present case. He has submitted that in the present case, as alleged by the prosecution, total 15 bags, containing poppy straw, were recovered from the Esteem car, however, only two samples were prepared. He further submitted that from the statement of Seizing Officer i.e. P.W. 9 – Swarndas, the then S.H.O., Police Station Tibbi, it reveals that samples from each bag were taken and after mixing them together, two samples of 1 kg. each were prepared and sealed. He, thus, urged that the procedure adopted by the Seizing Officer was not in accordance with the prescribed method of drawing samples in N.D.P.S. cases.

7. While relying on the judgments of a coordinate Bench of this Court in the cases of Netram Vs. State of Rajasthan reported in 2014(1) Cr.L.R. (Raj.) 163 as well as Jaipal Singh Vs. State of Rajasthan (S.B. Criminal Appeal No. 437/2015) and other connected appeals decided on 22.08.2016, learned counsel for the appellants has submitted that the Seizing Officer was required to collect sample from every bag and sent it to F.S.L. for examination. Instead, he prepared one sample in duplicate. The procedure adopted by the Seizing Officer in mixing the samples of different bags and preparing only one sample in duplicate was defective and caused prejudice to the accused. He further submitted that in the above circumstances, the prosecution was not able to prove that all 15 bags were containing contraband poppy straw in it. Each bag was allegedly weighing 20 kgs. He, therefore, urged that at the best, the accused could be held liable for being found in possession of 20 kgs of contraband poppy straw only and nothing beyond that. Learned counsel has further submitted that the appellants have remained in judicial custody for more than 8 and 5 years, respectively. He, therefore, prayed that the appellants’ conviction under Section 8/15(c) of the N.D.P.S. Act recorded by the trial court may be altered to that of under Section 8/15(b) of the N.D.P.S. Act and they may be sentenced for the period already undergone by them.

8. Per contra, learned Public Prosecutor has opposed the prayer of learned counsel for the appellants, however, he could not refute the fact that the samples were not taken by the Seizing Officer from each of the bag individually. He has not disputed the period of sentences undergone by the appellants and nor could point out any material to suggest that the appellants are previously convicted.

9. The question before this Court is as to whether not collecting sample in duplicate from each of the bag has prejudiced the accused in defence and therefore, they cannot be convicted for possessing the poppy straw in commercial quantity

10. For deciding the said question, it will be beneficial to deal with the judgments cited by the learned counsel for the appellants and the Standing Instruction No. 01/1988 issued by the Narcotics Control Bureau, New Delhi. Instruction 1.7 of the said Instructions prescribes the manner in which the samples are to be drawn in each seizure case. The said instructions are as follow :-

"1.7 Number of samples to be drawn in each seizure case

a) In the case of seizure of a single package/ container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each packag/container in case of seizure of more than one package/container.

b) However, when the package/containers seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. Kit, conclusively indicating that the packages are identical in all respect/ the packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hashish, the packages/containers may be bunched in lots of 40 such packages/ containers. For each such lot of packages/ containers, one sample in duplicate may be drawn. (emphasis supplied)

c) Whereafter making such lots, in the case of Hashine and Ganja, less than 20 packages/ containers remain, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.

d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja and Hashish, one more sample in duplicate may be drawn for such remainder package/containers.

e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.”

11. The above instructions have been discussed in the judgment of a coordinate Bench of this Court in the cases of Netram (supra) and Jaipal Singh (supra). In the case of Netram (supra), a coordinate Bench of this Court held that :-

“From a perusal of Instruction 1.7(a), it is evident that it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. Instruction 1.7(b) provides an exception to Instruction 1.7(a).”

12. In the case of Netram (supra), total two bags of poppy straw were recovered and the contents of both the bags were mixed and then, two samples of 500 gms. each were taken from the admixture. A Coordinate Bench of this Court held that the procedure as provided under the Instruction 1.7(b) was not followed. The essential requirement, before such an action of drawing a representative sample can be undertaken, is that the contents of each package have to be subjected to colour test by U.N. drug testing Kit. Once the test is conducted and the result indicates that all the packages are identical in all respects, then a representative sample can be taken out after bunching the packages. Admittedly, in the said case, no such colour test by U.N. Kit was conducted on the two packages/gunny bags by the Seizing Officer before collecting the representative sample. On the ground aforesaid, a coordinate Bench of this Court was of the opinion that the appellant’s conviction as recorded by the trial court under Section 8/15 of the N.D.P.S. Act for being found in possession of commercial quantity of poppy straw cannot be sustained and instead, the appellant deserves to be convicted for the offence under Section 8/15(b) of the N.D.P.S. Act for being found in possession of a non-commercial quantity i.e. 40 kgs. of poppy straw. Coordinate Bench of this Court has also referred the judgments of the Hon’ble Apex Court in the cases of Union of India Vs. Bal Mukund and Ors. reported in 2009 Cri.L.J. 2407 and Gaunter Edwin Kircher Vs. State of Goa reported in AIR 1993 SC 1456 as also decision rendered by this Court in the case of Ghewar Ram Vs. State of Rajasthan reported in 2007(2) Cr.L.R. (Raj.) 1695.

13. In the case of Jaipal Singh (supra), a coordinate Bench of this Court after considering the various judgments on this point, held that :

“21. Sub clause (b) to (e) is not applicable in any of the case as bags seized were not identical in size and weight bearing identical markings and colour test by U.N. kit was not conducted, they were not bunched in lots of 10 packages thus in all the cases that have come up before me Clause (a) of 1.7 would be applicable, according to which if a single package/container is seized then one sample in duplicate is to be drawn and if more than single package/container is seized one sample in duplicate from each package container should be drawn.”

14. In the aforesaid bunch of appeals before the coordinate Bench of this Court led by Jaipal Singh’s case (supra) also, more than one bag of contraband poppy husk was recovered. From perusal of the above judgment passed in Jaipal Singh’s case, it reveals that Instruction Nos. 1.7(b) to (e) are not applicable in the cases where more than one bag, containing poppy straw, is seized by the Seizing Officer.

15. In the considered opinion of this Court also, from perusal of the Standing Instructions, it can be safely held that when package/container seized together is of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. Kit, then only provisions provided in Instruction Nos. 1.7 (b), (c), (d) & (e) are applicable, which is not the prosecution case in the present matter.

16. In the present case, it is not in dispute that seized articles were not of identical size and did not bear identical markings and hence, there is no requirement to adopt the procedure as provided in Clause 1.7 (b) to (e) of the Standing Instructions. Hence, colour test by U.N. Kit was not required. This Court is in full agreement with the findings of a coordinate Bench of this Court in the case of Jaipal Singh (supra), in which it was held that under such circumstances, Clause (a) of 1.7 of Standing Instructions would be applicable, according to which, if more than single package/container is seized, one sample in duplicate from each package/container should be drawn.

17. In the present case, it is not in dispute that as per prosecution story, total 15 bags of contraband poppy straw were recovered from the possession of the appellants and one sample from each package was not drawn, though, it was advisable under clause (a) of 1.7 of the Standing Instruction No. 1/1988. As per the statement of P.W. 9 – Swarndas, Seizing Officer, some part of the substance was separated from each package and then it was mixed and two samples of 1 kg. each were collected from the admixture. It is true that in the Standing Instructions, the word ‘advisable’ has been used but looking to the stringent provisions of the N.D.P.S. Act, this Court is of the view that looking to the limited number of bags, the Seizing Officer should have drawn one sample in duplicate from each of the bag to rule out any possibility that prepared samples did not represent the whole substance recovered.

18. Allahabad High Court in the case of Haider Ansari Vs. State (Jail Appeal No. 7872/2007) decided on 22.02.2018 has referred Para 10 of the judgment of Hon’ble Supreme Court in the case of Khet Singh Vs. Union of India reported in (2002) 45 ACC 41. The relevant extract of Para 14 of the judgment reads as under :-

“14. The Hon'ble Supreme Court in Khet Singh Vs. Union of India (2002) 45 ACC 41 has held in paragraph 10 of the judgment as below:-

"10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody."

19. Keeping in mind the ratio as propounded by the Hon’ble Apex Court and from perusal of the above, the Seizing Officer was required to follow standing instructions, for drawing one sample in duplicate from each of the package and if he had any difficulty in drawing the sample from each of the package, then he was required to give reasons in writing for not following the procedure so that the trial court may have appreciated the reasons and give its verdict accordingly.

20. In the present case, P.W. 9 – Swarndas, the Seizing Officer, has not assigned any reasons for not following the procedure as mentioned in Instruction 1.7. He simply stated in his statement that each bag was weighing 20 kgs. and he separated some substance from each bag and prepared one sample of 1 kg. in duplicate and sealed it. This witness in his statement did not disclose the quantity of the substance separated from each bag. He even did not say that he collected even equal quantity of contraband from each bag and mixed it together in such a manner, it can safely be said that it represents whole quantity. In the considered opinion of this Court, it would not be safe to convict the appellants for possessing the contraband in commercial quantity. The samples collected by the Seizing Officer did not satisfy the fact that collected sample is really representative sample of the whole substance alleged to be poppy straw.

21. The Hon’ble Apex Court in the case of Union of India Vs. Bal Mukund & Ors. reported in 2009 Cr.L.R. (SC) 590 has held as under :-

“39. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction No. 1/88, which had been issued under the, lays down the procedure for taking samples. The High Court has noticed that PW-7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law.”

22. It is pertinent to note that except above para, the Standing Instruction No. 1/1988 has not been dealt with in the case of Bal Mukund (supra).

23. In view of the above facts and circumstances and the legal position, the conviction of the appellants deserves to be altered. The appellants cannot be convicted for the offence under Section 8/15(c) of the N.D.P.S. Act for possessing contraband poppy straw in commercial quantity, however, the appellants can be safely convicted under Section 8/15(b) of the N.D.P.S. Act for possessing poppy straw in quantity lesser than commercial quantity but greater than small quantity.

24. Learned counsel for the appellants has not raised any other ground to assail the conviction of the appellants. However, he prayed for releasing the appellants for the period already undergone by them in prison.

25. After hearing learned counsel for the parties and perusing the record, it reveals that appellant No. 1 - Sukh Preet Singh @ Kala has undergone more than 8 years of sentence and appellant No. 2 - Gurpreet Singh has undergone almost 5 years and 8 months sentence. It also reveals from the record that the appellant No. 1 – Sukh Preet Singh @ Kala has been convicted in another case under the N.D.P.S. Act and sentenced to 15 years imprisonment on 18.11.2016.

26. Learned counsel for the appellants submitted that since the offence in the present case was committed before conviction of the appellant No. 1 in the first case and no charge was framed against him for enhanced punishment, he is not liable for enhanced punishment under Section 31 of the N.D.P.S. Act.

27. On the other hand, learned Public Prosecutor prayed to punish the appellant No. 1 with maximum punishment provided under the law.

28. Accepting the prayer of learned counsel for the appellants, appellants are convicted for the offence under Section 8/15(b) of the N.D.P.S. Act instead of Section 8/15(c) of the N.D.P.S. Act. However, taking into account the facts and circumstances of the case and the period already undergone by the appellants, which is more than 8 years in case of appellant No. 1 and more than 5 years & 8 month in case of appellant No. 2, they are sentenced to undergo rigorous imprisonment for the period already undergone by them. The sentence of fine imposed by the trial court against the appellants is reduced from Rs. 1,00,000/- to Rs. 50,000/- each and in default of payment of fine, they shall further undergo 1 year rigorous imprisonment. Upon depositing the fine, appellants shall be set at liberty forthwith, if not wanted in any other case.

29. Consequently, the Criminal Appeal No. 953/2016 is partly allowed and the judgment and order dated 11.03.2016 passed by the Special Judge, N.D.P.S. Cases, Hanumangarh is modified to the extent indicated above.

30. So far as Criminal Appeal No. 478/2016 is concerned, learned Public Prosecutor appearing for the appellant – State submitted that the trial court erred in acquitting the accusedrespondent – Jasvinder Singh @ Chhinda. The prosecution proved its case against the accused-respondent for the offence under Section 8/15 read with Sections 25 & 29 of the N.D.P.S. Act. He was owner of the Esteem car from which the contraband poppy straw was recovered. He, therefore, prayed that while allowing this appeal, the accused-respondent may be convicted and sentenced for the charges levelled against him.

31. Learned counsel for the accused-respondent while supporting the judgment of acquittal submitted that the trial court after appreciating entire evidence on record rightly passed the judgment acquitting the respondent for the charges levelled against him.

32. From perusal of the record, it reveals that there is no evidence available on record against respondent – Jasvidra Singh @ Chhinda except the information under Section 27 of the Indian Evidence Act given by the co-accused Sukh Preet Singh @ Kala (Ex.P/15) and Gurpreet Singh (Ex.P/16). Apart from this, the prosecution has relied upon the information under Section 27 of the Evidence Act (Ex.P/21) given by the respondent – Jasvidra Singh @ Chhinda regarding the place from where poppy straw was stolen. In the considered opinion of this Court, these types of information are not admissible in evidence and only those information are admissible in evidence, in consequence of which, any fact is discovered from the accused persons.

33. As per prosecution story, respondent – Jasvidra Singh @ Chhinda was registered owner of Esteem car seized in this case. However, the registration certificate of the said car was not produced by him. As per the statement of P.W. 5 – Anil Kumar (Investigating Officer), he in his cross-examination has categorically stated that registration certificate of the Esteem car was produced by one Balveer Singh, which was seized vide Ex.P/13. A registered owner of the seized vehicle with narcotic substance cannot be convicted solely on the ground that he is owner of the vehicle. As per provisions of Section 25 of the N.D.P.S. Act, he must be in the knowledge or in connivance with the main accused that the vehicle is being used for carrying the narcotic substance. In the present case, there is no evidence on record to suggest that the vehicle in question was handed over by respondent – Jasvinder Singh @ Chhinda to anybody for carrying narcotic substance or that the main accused Sukh Preet Singh @ Kala and Gurpreet Singh were carrying the narcotic substance in connivance with the respondent or respondent allowed them to use his vehicle for carrying contraband poppy straw. The trial court was right in acquitting the respondent on the ground that there was no evidence on record to prove alleged offences against the accused-respondent.

34. In the considered opinion of this Court, there is no ground to interfere with the judgment impugned qua acquitting accusedrespondent – Jasvinder Singh @ Chhinda for the charges levelled against him.

35. The Criminal Appeal No. 478/2016 is, accordingly, dismissed.

36. The record of the trial court be returned back forthwith.