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TMI Blog2023 (5) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... serious doubt about the prosecution's case that substance recovered was a contraband. Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt - the impugned judgments insofar as the present appellant is concerned is set aside - the conviction and sentence set aside - appeal allowed. - HON'BLE MR. JUSTICE ABHAY S. OKA AND HON'BLE MR. JUSTICE RAJESH BINDAL For the Petitioner : Mr. Puneet Jain, Adv. Mr. Harshit Khanduja, Adv. Mr. Harsh Jain, Adv. Mr. Himanshu Satija, Adv. Mr. Umang Mehta, Adv. Mr. Harsh Saxena, Adv. Ms. Sujal Gupta, Adv. Mr. B. K. Satija, AOR For the Respondent : Mr. Karan Sharma, AOR Mr. Mohit Siwach, Adv. Mr. Rishabh Sharma, Adv. ORDER Leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was done by PW-7 without taking recourse to sub-section 2 of Section 52A of the NDPS Act. He also pointed out that the examination-in-Chief of PW-7 SI Hardeep Singh which shows that the samples were drawn immediately after the seizure. 6. The learned counsel appearing for the respondent-State supported the impugned judgments. 7. We have perused the evidence of PW-7 Hardeep Singh in which he has stated that from the eight bags of poppy husk, two samples of 250 gms each were drawn and converted into 16 parcels. This has been done immediately after the seizure. 8. In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case1, it was held thus: 15. It is manifest from Section 52-A(2)include (supra) that upon seizure of the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. 9. Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of Mohanlal1. This creates a serious doubt about the prosecution's case that substance recovered was a contraband. 10. Hence, the case of the prosecution is not free from susp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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