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TMI Blog2023 (5) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... the Narcotics Control Bureau for Drug Law Enforcement also reiterates these procedures prescribed under the Standing Orders. As a side-wind, it is worth mentioning that post the decision in Mohanlal [ 2016 (5) TMI 500 - SUPREME COURT] , the discussion has also veered towards whether the sampling has to be done mandatorily before the Magistrate in compliance of Section 52A NDPS Act. Recently, a Coordinate Bench of this Court in Kashif v. Narcotics Control Bureau, [ 2023 (5) TMI 1383 - DELHI HIGH COURT] while granting relief to the accused has taken the view that the compliance of Section 52A is mandatory and cannot be delayed or ignored. Moreover, there is a recent Standing Order issued dated 23rd December 2022 by the Ministry of Finance in exercise of powers conferred by Section 76 r/w Section 52 A of NDPS Act wherein procedure for seizure and storage of seized material and sampling and disposal has been provided in detail and which directs sampling to be done in front of the magistrate. Therefore, as per this view, the sampling ought to be done in compliance of Section 52A and not at the time of seizure. In this case, besides the fact that the appellant may have a case to argue on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The colour, texture and property of material from both concealments were the same and each concealment was tested separately which gave positive results for Methamphetamine. After the testing, the contraband was mixed and transferred into a transparent polythene and the total weight was 3kg. Two samples of 5gm each were taken from the mixed substance, thereafter, the appellant s statement under section 67 NDPS Act was recorded. CRCL report dated 18th April, 2018 confirmed the crystalline substance to be Methamphetamine. A total of 12 witnesses were examined. 3. Learned counsel for the appellant has relied upon the following decisions of the Hon ble Supreme Court and various other Courts where similarly placed convicts have been released on regular suspension of sentence despite having been accused of possessing a commercial quantity of the contraband, and they are follows: i) Mossa Koya KP v. State (NCT of Delhi), 2021 SCC OnLine 3110; ii) Daler Singh v. State of Punjab, 2006 SCC OnLine P H 1591l; iii) Joseph Onyekachukwu Nawabo v. Directorate of Revenue Intelligence, CRL.A. 1175/2019 decided on 31st January, 2023 by this Court; iv) Chima Akuma v. State, CRL.A. 1365/2019 decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OnLine P H 1591, this Court has granted suspension of sentence even in cases where the petitioner was a foreign national and had been convicted under the NDPS Act: Chinazor Festus Mbalugh v. Narcotics Control Bureau, Crl. Appeal No. 76 of 2020, decision dated 01st March, 2021; Paul Chinedu Ugwar v. State (NCT of Delhi), Crl. Appeal No. 448/2015, decision dated 23rd February 2021; Simon Onome Umukoro v. The State, Cri. Appeal No. 754/2014, decision dated 4th February 2020; Nisha @ Putalya v. State NCT of Delhi, Crl. Appeal No. 110/2017, decision dated 2nd March 2020; Mohd. Arif @ Guddu v. State NCT of Delhi, Crl. Appeal No. 293/2017, decision dated 19th May 2020; Chidiebere Kingsley Nawchara v. Narcotics Control Bureau in Crl. Appeal No. 350/2020 decision dated 26th May, 2022. It is noted from the Nominal Roll that the appellant has no prior convictions or previous involvements and his jail conduct has been satisfactory except for one incident. Even applying the principles in Daler Singh (supra), the appellant has undergone a period of more than 15 months after conviction and about 5 years and more in total of his sentence including the time as an under trial. 7. In Chima Akuma (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve samples is not permissible under the Standing Orders and rightly so since such a sample would cease to be a representative sample of the corresponding container/package. 18. In the present case, four packets containing suspicious powdery substance were found concealed in a stroller bag‟. On testing with the field testing kit‟, the powder in each packet tested positive for heroin. The I.O., without weighing the contents of each individual packet, mixed the powder from all the 4 packets in one polythene bag and then drew the sample from the mixture. 19. In the opinion of this court, the respondent ought to have adopted the procedure outlined in Para 2.4 of the Standing Order 1/89 [or para 1.7(a) of Standing Order 1/88] by drawing sample (in duplicate) from each of the 4 packets separately and then sending the samples for testing. It was also pointed out by the learned counsel for the appellant that the SLP before the Hon ble Supreme Court against the said order was dismissed and therefore, the decision of this Court in Amani Fidel Chris (supra) stood confirmed. Fifthly, the impugned judgment in paras 27 and 28 while noting the contention of the appellant and the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Standing Order 1/89 issued by the Ministry of Finance, Government of India, it is contended by the prosecution that these issues are a matter of trial as also that the Standing Orders are not mandatory but directory in nature. Yet another issue that arises is whether sampling ought to be done at the time of seizure or later in accordance with provisions of section 52A NDPS Act before the Magistrate. To fully unravel these contentions, it would be apposite to appreciate and assess the Standing Order being referred to, the context and purpose for which they were issued, and the decisions of various courts in this regard. 13. The manner of drawing a sample of narcotics has been laid down in Standing Order 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau. Standing Order 1/89 dated 13.06.1989, is pari materia with Standing Order 1/88, issued by the Department of Revenue, Ministry of Finance, Government of India. 14. The Hon ble Supreme Court in Noor Aga v. State of Punjab, (2008) 16 SCC 417 dealing with recovery of 1.4kg heroin from a cardboard container, considering the sanctity of Standing Order 1/89, held as under: 87. Perseverance of original wrappers, thus, comes within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng penal proceedings, vis-a-vis a departmental proceeding, rigours of such guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefor, it becomes obligatory on the part of the subordinate authorities to comply therewith. 90. Recently, this Court in State of Kerala and Ors. v. Kurian Abraham (P) Ltd. (2008) 3 SCC 582 following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan (2004) 10 SCC 1held that statutory instructions are mandatory in nature. 91. Logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact . Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that the results would be negative. (emphasis added) 17. In Santini Simone v. Department of Customs, 2020 SCC OnLine Del 2128 this Court acquitted the accused observing that the instructions contained in Standing Order No. 1/89 was not followed and it held as under: 63. Concededly, in the present case the instructions contained in Standing Order No. 1/89, was not followed. 64. In Khet Singh v. Union of India: (2002) 4 SCC 380, the Supreme Court had, in the context of similar instructions issued (Standing Order 1/88) by the NCB, New Delhi, held that the same were to be followed by the Officer-in-charge of the investigation of crimes falling within the purview of the NDPS Act. The Court held that even though the said instructions did not have the force of law, they were intended to guide the officers to ensure that a fair procedure is adopted in the investigation. 65. In a subsequent decision, in the case of State of Punjab v. Makhan Chand: (2004) 3 SCC 453, the Supreme Court held that Section 52A(1) of the NDPS Act did not empower the Central Government to lay down the procedure for search of an accused. But, a subsequent decision rendered by the Supreme Court on 31.03.2009, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve samples. Besides, by mixing the contents of all the 4 packets before drawing any sample not only the sanctity of the case property in the individual packet was lost but also the evidence as to how much each individual packet weighed. In reaching the aforesaid conclusion, I also draw support from the decisions in Shajahan v. Inspector of Excise (DB) reported as 2019 SCC OnLine Ker 3685 Kulwinder Kumar v. State of Punjab, reported as 2018 SCC OnLine P H 1754 and Santosh Kumar v. The State of Bihar passed in Criminal Appeal (SJ) No.158/2016 decided on 30.08.2019. (emphasis added) 19. More recently, a Coordinate Bench of this Court in Laxman Thakur v. State (NCT of Delhi), 2022 SCC OnLine Del 4427 held as under: 11. The Standing Order 1/88 mandates that the transferring of content of all packets into one and then drawing a sample from the mixture is not permitted. 12. I am of the view that in the present case, the instructions in 1/88 has not been followed and the sample has been drawn after mixing the contents of various packets into one container. The same has caused serious prejudice to the case of the applicant. Since the collection of sample itself is faulty, the rigours of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohanlal, (2016) 3 SCC 379 where it was held as under: 31. To sum up we direct as under: 31.1. No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52- A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading seizure and sampling . The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order (emphasis added) 22. Reference must also be made to the decision of the Hon ble Supreme Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 where it held as under: 24. Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the CrPC. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions . Therefore, in this Court's view, the Standing Orders ought to be respected by the investigating agencies and non-compliance of those Standing Orders may naturally invoke a reasonable doubt relating to the process of sampling which is the most critical procedure to be carried out in order to ascertain the nature of the substance and its quantity. In fact, the Field Officers Handbook issued by the Narcotics Control Bureau for Drug Law Enforcement also reiterates these procedures prescribed under the Standing Orders. 24. As a side-wind, it is worth mentioning that post the decision in Mohanlal (supra), the discussion has also veered towards whether the sampling has to be done mandatorily before the Magistrate in compliance of Section 52A NDPS Act. Recently, a Coordinate Bench of this Court in Kashif v. Narcotics Control Bureau, 2023 SCC OnLine Del 2881 while granting relief to the accused has taken the view that the compliance of Section 52A is mandatory and cannot be delayed or ignored. Moreover, there is a recent Standing Order issued dated 23rd December 2022 by the Ministry of Finance in exercise of powers conferred by Section 76 r/w Section 52 A of NDPS Act wherein pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (where the Hon ble Supreme Court has stated that in cases other than life sentence cases the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail), this Court deems it fit to suspend the sentence of the appellant. It is therefore directed that the sentence of the appellant be suspended pending the hearing of the appeal, on furnishing a personal bond in the sum of ₹1,00,000/- with one surety bond of the like amount, subject to the satisfaction of the learned Trial Court/ CMM/ Duty Magistrate, further subject to the following conditions: i) Appellant will not leave the country without prior permission of the Court. Appellant will deposit the copy of her passport to the Ld. Trial Court. ii) Appellant shall provide permanent address to the Ld. Trial Court. The appellant shall intimate the Court by way of an affidavit and to the IO regarding any change in residential address. iii) Appellant shall appear before the Court as and when the matter is taken up for hearing. iv) Appellant shall provide all mobile numbers to the IO concerned which shall be kept in working condition at all times and shall not switch off or change the mobile numb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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