# Sajeb Ali @ Shakeel v. State of U.P

- **Citation:** (2024) 7 ILRA 1062
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-23
- **Case number:** Criminal Appeal No. 1146 of 2019
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sajeb-ali-shakeel-v-state-of-u-p-52183
- **Pages:** 25

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973
- Section 374(2)
-
Appeals from conviction, Narcotic Drugs
and Psychotropic Substances Act, 1985 -
Section 8/20, Section 52A - Disposal of
seized narcotic drugs and psychotropic
substances , Section 52A (2), (3) and (4) -
procedure
and
manner
of
seizing,
preparing the inventory of the seized
material, forwarding the seized material
and getting inventory certified by the
Magistrate concerned - Section 53 -
Powers of officers and authorities - Noncompliance with mandatory provisions of
Section 52A NDPS Act and failure to lead
primary evidence render the prosecution
case unsustainable.(Para -39,41,42)

Seizure and sampling - Charas recovered from
appellant's bag - Sample drawn for chemical
test - Non-compliance with Section 52A of NDPS
Act - sample from the seized substance was
drawn by the police team not in the presence of
the Magistrate - not certified by Magistrate's -
Seizure and sampling procedure not followed -
No primary evidence led by prosecution. (Para
- 36 ,37,41 )

HELD: - Appellant acquitted due to noncompliance
with
mandatory
provisions
of
Section 52A of NDPS Act. conviction of
appellant/accused set-aside. (Para -37 to 43)

Criminal appeal allowed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,989 of 74,567. This is a partial read: ask again with offset=39989 for what follows._

1062 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses of the alleged recovery and even
no explanation has been offered by the
prosecution for their non-production. All
the witnesses are police personnel. Nonproduction of independent eye witness is
serious lacuna which has made the
prosecution case very doubtful.

29. The defense has raised serious
allegations regarding the manner in which the
investigation was conducted. Accused Ikrar
stated that his signatures were forcibly
obtained at the D.N.C. office in Lucknow, and
Suhail denied giving any statement voluntarily,
claiming that his signatures were obtained
under duress. These allegations cast doubt on
the integrity of the investigation process and
were not adequately addressed by the trial
court.

30. The handling and examination of
the recovered narcotic substances did not
comply with the prescribed legal protocols,
raising doubts about the integrity and
reliability of the evidence. Proper chain of
custody and forensic examination are critical
in cases involving narcotics to ensure that the
evidence has not been tampered with or
contaminated.

31. The prosecution's case is primarily
based on circumstantial evidence, with no direct
evidence linking the appellants to the possession
and distribution of the narcotics. In the absence of
direct evidence, the prosecution has failed to
establish the guilt of the appellants beyond a
reasonable doubt.

32. It is noteworthy that the individuals
from whom the narcotics were allegedly
recovered have been acquitted, while the
appellants, from whom no recovery was made,
have
been
convicted.
This
inconsistency
highlights the arbitrary and unjust nature of the
trial court decision.
33. Therefore, based on the analysis of
the evidence and the legal precedents cited, this
Court concludes that the prosecution has failed to
establish its case beyond a reasonable doubt. The
non-compliance with Section 50 of the NDPS
Act, coupled with procedural irregularities and
discrepancies in the evidence, casts serious doubt
on the guilt of the accused. Consequently, the
accused is entitled to the benefit of doubt,
Therefore, unable to uphold the conviction and
sentence of the appellant. The appellant is entitled
to be acquitted. The impugned judgment and
order is liable to be set aside and accordingly,
appeal is liable to be allowed.

34. Therefore, the appeal is allowed, and
the judgment and order dated 29.7.2002, passed
by the trial court in Criminal Case No. 650 of
1991, Ikrar and others vs. Union of India is hereby
set aside and reversed. The appellant, Suhail, is
acquitted of all charges levelled against him. The
appellant is on bail. Their personal bond and
surety bonds are canceled and sureties are
discharged.

35. . Let a copy of this judgment
alongwith the lower court record be sent
immediately to the Trial Court concerned for
necessary compliance.

36. No order as to the costs.
----------
(2024) 7 ILRA 1062
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.07.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Criminal Appeal No. 1146 of 2019

Sajeb Ali @ Shakeel ...Appellant
Versus
State of U.P. ...Respondent
7 All. Sajeb Ali @ Shakeel Vs. State of U.P.
1063
Counsel for the Appellant:
Soniya Mishra, Anjali, Ashok Kumar, Azmi
Yousuf, Chandra Prakash, Neeraj Kumar Rastogi,
Rajiv Mishra

Counsel for the Respondent:
Govt. Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973
- Section 374(2)
-
Appeals from conviction, Narcotic Drugs
and Psychotropic Substances Act, 1985 -
Section 8/20, Section 52A - Disposal of
seized narcotic drugs and psychotropic
substances , Section 52A (2), (3) and (4) -
procedure
and
manner
of
seizing,
preparing the inventory of the seized
material, forwarding the seized material
and getting inventory certified by the
Magistrate concerned - Section 53 -
Powers of officers and authorities - Noncompliance with mandatory provisions of
Section 52A NDPS Act and failure to lead
primary evidence render the prosecution
case unsustainable.(Para -39,41,42)

Seizure and sampling - Charas recovered from
appellant's bag - Sample drawn for chemical
test - Non-compliance with Section 52A of NDPS
Act - sample from the seized substance was
drawn by the police team not in the presence of
the Magistrate - not certified by Magistrate's -
Seizure and sampling procedure not followed -
No primary evidence led by prosecution. (Para
- 36 ,37,41 )

HELD: - Appellant acquitted due to noncompliance
with
mandatory
provisions
of
Section 52A of NDPS Act. conviction of
appellant/accused set-aside. (Para -37 to 43)

Criminal appeal allowed. (E-7)

List of Cases cited:

1. St. of Kerala & ors. Vs Kurian Abraham (P)
Ltd., (2008) 3 SCC 582

2. U.O.I. Vs Azadi Bachao Andolan, (2004) 10
SCC 1

3. Noor Aga Vs St. of Punj., (2008) 16 SCC 417

4. U.O.I. Vs Mohanlal & ors. (2016) 3 SCC 379

5. Gaunter Dewin Kircher Vs St. of Goa, (1993)
3 SCC 145

6. Yusuf @ Asif Vs St. of U.P., 2023 SCC OnLine
SC 1328

7. Simarnjit Singh Vs St. of Punj., 2023 SCC
OnLine SC 906

8. U.O.I. Vs Mohan Lal & anr., 2016 (3) SCC 379

9. Mangilal Vs St. of M.P., 2023 SCC OnLine 862

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Ms. Azmi Yousuf, learned
counsel for the appellant and Shri Ajay
Kumar Srivastava, learned A.G.A. for the
State.

2. The instant appeal under Section
374(2) has been filed challenging the
judgment dated 13.08.2018 passed by
learned IIIrd Additional Sessions Judge,
Lakhimpur Kheri in Session Trial No. 08 of
2015 arising out of Case Crime No. 219 of
2014 under Section 8/20 of Narcotic Drugs
and Psychotropic Substances Act, 1985 (in
short "Act") Police Station - Gaurifanta,
District - Lakhimpur Kheri whereby the
appellant has been convicted and sentenced
for a period of twenty years along with the
fine of Rs. 1,00,000/- and in default of fine
to
undergo
additional
six
months'
imprisonment.

3. It is to be noted that the
appellant was apprehended/arrested on
22.11.2014 and he was never enlarged on
bail. In this view of the matter, he has
already gone sentence of nine years and six
months.

4. The case of prosecution, as per
material available on record, is to the effect
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
that on 22.11.2014, the accused/appellant
was apprehended by Amresh Vishwas on an
information received from the police
informant at about 16:45 hours and
thereafter
the
accused/appellant
was
searched and from his possession 9 kg and
800 gram of charas was recovered. This
charas was recovered from the bag which
the accused was carrying at relevant point
of time, and thereafter, recovery memo was
prepared.

5. After completion of necessary
formalities, the charge sheet was submitted
in Case Crime No. 219 of 2014 under
Section 8/20 of the Act which was
registered after preparation and submission
of report by the concerned Police Officer of
the Police present at the site of the crime.

6. Taking note of the material
available on record, the trial Court on
15.04.2015 framed charge against the
appellant under Section 8/20 of the Act and
the said charge was read over and exlained
to the accused/appellant, who thereafter,
denied and upon denial, the appellant was
put to trial.

7. To prove it case, the prosecution
examined Amresh Viswas/PW-1, Krishna
Murari
Sharma/PW-2,
A.S.I.
Ashok
Kumar/PW-3,
Constable
Dev
Narain
Singh/PW-4 and also placed on record the
Fard Baramadgi (Ex. Ka.1), Site Plan
(Ex.Ka.2), Charge Sheet (Ex. Ka.3), FSL
Report (Ex. Ka.4), Packet(s) found in bag
(Ex. Nos. 1 to 5), Plastic Packets(Ex. Ka7), which were proved by the witnesses
named above.

8. In response to the question(s)
put to the accused/appellant in terms of
Section 313 Cr.P.C., the accused/appellant
denied the case of prosecution.
9. Thereafter, the trial court after
due consideration of the submissions
advanced by the learned counsel for the
parties and evidence available on record
passed the judgment of conviction, which
has been assailed in the present appeal.

10. Impeaching the judgment
under appeal, learned counsel for the
accused/appellant
stated
that
the
prosecution before the trial court failed to
prove its case as required under the law.
The provisions of the Act and the law on
the subject including the mode and the
manner prescribed under Standing Order
No.1/88 and the Standing Order No.1/89 as
also Section 52A of the Act, as explained
by various pronouncements, should be
followed and any lacunae/variation in the
procedure
prescribed
which
was/is
mandatory in nature, would be fatal to the
case of prosecution. The prosecution was/is
under obligation to follow the same for
establishing its case beyond doubt.

11. It is also stated that the
evidence particularly the samples produced
before the trial court along with FSL Report
ought not to have been considered by the
trial court in absence of sample prepared
and report obtained in terms of Standing
Orders and Section 52A of the Act.

12. It is stated that as per Standing
Orders on the subject and Section 52A of
the Act, the samples were not taken. In this
case, five packets were recovered from the
bag of the accused/appellant, as per the
case of prosecution, and from the said
given packets, one sample of 100 gms. was
drawn. From the recovery memo, it is not
clear that as to whether from all five
packets, charas was taken and thereafter
one sample was drawn or only from one
packet the sample was taken and it is also
7 All. Sajeb Ali @ Shakeel Vs. State of U.P.
1065
not clear that as to whether sample was
taken in duplicate or not.

13. It is further stated that in the
instant case, as per prosecution, the charas
was recovered from the possession of the
accused/appellant and accordingly in terms
of Standing Order No.1/88 and Standing
Order No. 1/89 particularly Clause 1.6 and
Clause 2.3, respectively, from all/each
alleged packet(s) recovered minimum 24
gms. charas ought to have been taken as
sample (in duplicate) for chemical test or
packet(s) recovered should have been
mixed
to
make
homogeneous
and
representative
before
the
sample
(in
duplicate )is drawn.

14. In this case, from recovery
memo, it is apparent that the process as
indicated in Standing Order No. 1/88 and
1/89 was not adopted. In clarification,
appellant's counsel also stated that one
view which is possible that from one
packet, 100 gms. was taken as sample and
as such, in these circumstances, the
procedure as required was not followed.
Thus, entire case of prosecution against the
accused-appellant has no force.

15. It is also stated that the sample
was not drawn in terms of procedure
prescribed under Section 52A of the Act
and despite the same the trial Court treated
the sample as an evidence based upon the
FSL Report for passing the judgment of
conviction. Thus, the trial Court erred in
doing so.

16. In support of the aforesaid
contention,
learned
counsel
for
the
accused/appellant
placed
before
this
Court
various
pronouncements
and
Standing Order No. 1/88 as also Standing
Order No.1/89 and based upon the same,
she submitted that the appeal is liable to
be allowed and the judgment under
appeal
be
set
aside
and
the
accused/appellant be set free.

17. Per contra, Sri Ajay Kumar
Srivastava, learned AGA says that main
witness of prosecution namely Amresh
Vishwas/P.W.1, who apprehended the
appellant and who was responsible for
search and seizure and was present at the
relevant point of time before the trial
court specifically stated that from all the
packets, charas was taken and thereafter
sample of 100 gms. charas was drawn. He
further submitted that a conjoint reading
of recovery memo, FSL Report, which
finds favour of prosecution story and the
statement of P.W.1 would show that
before the trial Court the prosecution
proved its case. The appeal is liable to be
dismissed. However, he could not dispute
that prosecution failed to comply with the
provisions of Section 52A (2) of the Act.

18. Considered the submissions
advanced by the learned counsel for the
parties and perused the record, which is
available before this Court.

19.

Having
considered
the
aforesaid, this Court finds that the issue
in the instant appeal relates to the seizure
and sampling and if the seizure and
sampling is not carried out in terms of the
settled proposition of law which includes
Section 52A of the Act, Standing Order
No(s). 1/88 and 1/89 and the principles
settled by the Hon'ble Apex Court in this
regard then what would be the effect of
the same?

20. In order to decide the
aforesaid, this Court finds it appropriate to
first take note of relevant provisions on the
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
issue as also the principles settled by the
Hon'ble Apex Court.

21. On the aforesaid, the Central
Government issued Standing Orders way
back in the year 1988 and issued certain
directions for drawing a sample of the
contraband substance.

22. Section 52A of the N.D.P.S.
Act was introduced by way of an
amendment by the Central Government in
the year 1989 and the matter relating to
sampling is governed by the said Section of
the law and the various instructions issued
by the Govt. of India from time to time.

"Section 52A of the NDPS
Act reads as hereunder provided:
[52A. Disposal of seized
narcotic drugs and psychotropic
substances.
-
(1)
The
Central
Government may, having regard to
the
hazardous
nature
of
any
narcotic drugs or psychotropic
substances, their vulnerability to
theft, substitution, constraints of
proper storage space or any other
relevant
considerations,
by
notification
published
in
the
Official
Gazette,
specify
such
narcotic drugs or psychotropic
substances or class of narcotic
drugs or class of psychotropic
substances which shall, as soon as
may be after their seizure, be
disposed of by such officer and in
such manner as that Government
may from time to time, determine
after
following
the
procedure
hereinafter specified.
(2) Where any narcotic
drug or psychotropic substance has
been seized and forwarded to the
officer-in-charge of the nearest
police station or to the officer
empowered under section 53, the
officer referred to in sub-section (1)
shall prepare an inventory of such
narcotic drugs or psychotropic
substances containing such details
relating
to
their
description,
quality, quantity, mode of packing,
marks, numbers or such other
identifying
particulars
of
the
narcotic drugs or psychotropic
substances or the packing in which
they are packed, country of origin
and other particulars as the officer
referred to in sub-section (1) may
consider relevant to the identity of
the narcotic drugs or psychotropic
substances in any proceedings
under this Act and make an
application, to any Magistrate for
the purpose of-
(a)
certifying
the
correctness of the inventory so
prepared; or
(b) taking, in the presence
of such Magistrate, photographs of
such drugs or substances and
certifying such photographs as
true; or
(c)
allowing
to
draw
representative samples of such
drugs or substances, in then
presence of such Magistrate and
certifying the correctness of any list
of samples so drawn.
(3) Where an application is
made under sub-section (2), the
Magistrate shall, as soon as may
be, allow the application.
(4)
Notwithstanding
anything contained in the Indian
Evidence Act, 1872 (1 of 1872) or
the Code of Criminal Procedure,
7 All. Sajeb Ali @ Shakeel Vs. State of U.P.
1067
1973 (2 of 1974), every court trying
an offence under this Act, shall
treat the inventory, the photographs
of narcotic drugs or psychotropic
substances and any list of samples
drawn under sub-section (2) and
certified by the Magistrate, as
primary evidence in respect of such
offence]."

23. After insertion of Section 52A
of the Act, the Central Government has in
exercise of that power issued Standing
Order No. 1 of 1989 which prescribes the
procedure to be followed while conducting
seizure of the contraband. The said Order
of 1989 succeeds the previous Standing
Order No.1 of 1988. Again, two subsequent
standing orders, one dated 10-5-2007 and
the other dated 16-1-2015, deal with
disposal
and
destruction
of
seized
contraband and do not alter or add to the
earlier standing orders that prescribe the
procedure for conducting seizures.

24. The manner of drawing a
sample of narcotics as laid down in
Standing Order 1/88 dated 15.03.1988
issued by the Narcotics Control Bureau can
be deduced from the following paragraphs
of the said Standing Order:

"1.4. If the drugs seized are
found in packages/containers the
same should be serially numbered
for purposes of identification. In
case the drugs are found in loose
form the same should be arranged
to be packed in unit containers of
uniform size and serial number
should
be
assigned
to
each
package/container.
Besides
the
serial number, the gross and net
weight, particular of the drug and
date of seizure should invariable be
indicated on the packages. In case
sufficient space is not available for
recording the above information on
the package, a Card Board label,
should be affixed with a seal of the
seizing officer and on this Card
Board label, the above details
should be recorded.
1.5 Place and time of
drawal of sample. - Samples from
the
Narcotic
Drugs
and
Psychotropic Substances seized,
must be drawn on the spot of
recovery, in duplicate, in the
presence
of
search
(Panch)
witnesses and the person from
whose possession the drug is
recovered, and mention to this
effect should invariably be made in
the panchnama drawn on the spot.
1.6 Quantity of different
drugs required in the sample
- The quantity to be drawn
in each sample for chemical test
should be 5 grams in respect of all
narcotic drugs and psychotropic
substances except in the cases of
Opium, Ganja and Charas/Hashish
where a quantity of 24 grams in
each case is required for chemical
test. The same quantities should be
taken for the duplicate sample also.
The
seized
drugs
in
the
packages/containers should be well
mixed to make it homogeneous and
representative before the sample in
duplicate is drawn.
1.7 Number of samples to
be drawn in each seizure case-
(a) In the case of seizure of
single
package/container
one
sample in duplicate is to be drawn.
Normally it is advisable to draw
one sample in duplicate from each
package/container
in
case
of
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
seizure
of
more
than
one
package/container.
(b) However, when the
package/container 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 may be
bunched in lots of 40 such
packages
such
packages/containers.
For
each
such lot of packages/containers,
one sample in duplicate may be
drawn.
(c) Where after making
such lots, in the case of Hashish
and
Ganja,
less
than
20
packages/containers remains, 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."
1.8.
Numbering
of
packages/containers- Subject to the
detailed procedure of identification
of
packages/containers,
as
indicated
in
Para
1.4
each
package/container
should
be
securely
sealed
and
in
identification slip pasted/attached
on each one of them at such place
and in such manner as will avoid
easy obliteration of the marks and
numbers on the slip. When more
than one sample is drawn, each
sample should also be serially
numbered and marked as S-1, S-2,
S-3 and so on, both original and
duplicate sample. It should carry
the serial number of the packages
and marked as P-1, 2, 3, 4 and so
on.
1.9. It needs no emphasis
that all samples must be drawn and
sealed in presence of the accused,
Panchanama witnesses and seizing
officer and all of them shall be
required to put their signature on
each sample. The official seal of
the seizing officer should also be
affixed. If the person from whose
custody the drugs have been
recovered, wants to put his own
seal on the sample, the same may
be allowed on both the original and
the duplicate of each of the
samples.
1.10. Packing and sealing
of
samples:
The
sample
in
duplicate should be kept in heatsealed plastic bags as it is
convenient and safe. The plastic
bag container should be kept in a
paper envelope which may be
sealed
properly.
Such
sealed
envelope
may
be
marked
as
original and duplicate. Both the
envelopes should also bear the
S.No.
of
the
package(s)/container(s) from which
7 All. Sajeb Ali @ Shakeel Vs. State of U.P.
1069
the sample has been drawn. The
duplicate envelope containing the
sample will also have a reference of
the test memo. The seals should be
legible. This envelope along with
test memos should be kept in
another envelope which should also
be sealed and marked "Secret -
Drug sample/Test memo", to be
sent to the chemical laboratory
concerned.
1.13. Mode and Time limit
for
dispatch
of
sample
to
Laboratory: The samples should be
sent either by insured post or
through special messenger duly
authorized
for
the
purpose.
Despatch of samples by registered
post or ordinary mail should not be
resorted to. Samples must be
dispatched to the Laboratory within
72 hours of seizure to avoid any
legal objection.
1.21. Custody of duplicate
sample: Duplicate sample of all
seized
narcotic
drugs
and
psychotropic substances must be
preserved and kept safely in the
custody of the investigating officer
along with the case property.
Normally duplicate sample may not
be used but in case of loss of
original sample in transit or
otherwise or on account of trial
court passing an order for a second
test, the duplicate sample will be
utilized."

25. Standing Order No.1/89
dated
13.06.1989
issued
under
sub
section (1) of Section 52A of NDPS Act
by the Department of Revenue, Ministry
of Finance, Government of India. Section
(II) of the said Order of 1989 provides for
the general procedure for sampling,
storage, which reads as under:-

"2.1. All drugs shall be
properly
classified,
carefully
weighed and sampled on the spot
of seizure.
2.2.
All
the
packages/containers
shall
be
serially numbered and kept in lots
for sampling. Samples from the
narcotic drugs and psychotropic
substances seized shall be drawn
on the spot of recovery, in
duplicate, in the presence of
search witnesses (Panchas) and
the person from whose possession
the drug is recovered, and a
mention to this effect should
invariably
be
made
in
the
panchanama drawn on the spot.
2.3. The quantity to be
drawn
in
each
sample
for
chemical test shall not be less
than 5 grams in respect of all
narcotic drugs and psychotropic
substances save in the cases of
opium,
ganja
and
charas
(hashish) where a quantity of 24
grams in each case is required for
chemical test. The same quantities
shall be taken for the duplicate
sample also. The seized drugs in
the packages/containers shall be
well
mixed
to
make
it
homogeneous and representative
before the sample (in duplicate) is
drawn.
2.4. In the case of seizure
of a single package/container, one
sample in duplicate shall be drawn.
Normally, it is advisable to draw
one sample (in duplicate) from
each package/container in case of
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
seizure
of
more
than
one
package/container.
2.5. However, when the
packages/containers
seized
together are of identical size and
weight, bearing identical markings,
and the contents of each package
given identical results on colour
test by the drug identification kit,
conclusively indicating that the
packages are identical in all
respects, the packages/containers
may be carefully bunched in lots of
ten packages/containers except in
the case of ganja and hashish
(charas), where it may be bunched
in
lots
of
40
such
packages/containers.
For
each
such lot of packages/containers,
one sample (i n duplicate) may be
drawn.
2.6. Where after making
such lots, in the case of hashish and
ganja,
less
than
20
packages/containers remain and, in
the case of other drugs, less than 5
packages/containers
remain,
no
bunching would be necessary and
no samples need be drawn.
2.7. If such remainder is 5
or more in the case of other drugs
and substances and 20 or more in
the case of ganja and hashish, one
more sample (in duplicate) may be
drawn
for
such
remainder
package/container.
2.8. While drawing one
sample (in duplicate ) from a
particular lot , it must be ensured
that
representative
samples
in
equal quantity are 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.
2.9.
The
sample
in
duplicate should be kept in heatsealed plastic bags as it is
convenient and safe. The plastic
bag container should be kept in a
paper envelope which may be
sealed
properly.
Such
sealed
envelope
may
be
marked
as
original and duplicate. Both the
envelopes should also bear the No.
of the package(s)/container(s) from
which the sample has been drawn.
The duplicate envelope containing
the sample will also have a
reference of the test memo. The
seals should be legible. This
envelope along with test memos
should be kept in another envelope
which should also be sealed and
marked "Secret - Drug sample/Test
memo", to be sent to the chemical
laboratory concerned.
3. The seizing officers of
the
Central
Government
Departments,
viz.,
Customs,
Central Excise, Central Bureau of
Narcotics,
Narcotic
s
Control
Bureau, Directorate of Revenue
Intelligence, etc. should despatch
samples of the seized drugs to one
of the laboratories of the Central
Revenues
Control
Laboratory
nearest to their offices depending
upon
the
availability
of
test
facilities
.
The
other
central
agencies like BSF, CBI and other
central police organizations may
send such samples to the Director,
Central Forensic Laboratory, New
Delhi.
All
State
enforcement
agencies may send samples of
seized drugs to the Director/Deputy
Director/ Assistant Director of their
respective State Forensic Science
Laboratory.
7 All. Sajeb Ali @ Shakeel Vs. State of U.P.
1071
3.1.
After
sampling,
a
detailed
inventory
of
such
packages/containers
shall
be
prepared for enclosure with the
panchnama.
Original
wrappers
shall
also
be
preserved
for
evidentiary purposes."

26. In State of Kerala and Ors. v.
Kurian Abraham (P) Ltd., (2008) 3 SCC
582 following the earlier decision in Union
of India v. Azadi Bachao Andolan, (2004)
10 SCC 1, it was held that the aforesaid
statutory instructions are mandatory in
nature.

27. Considering the Standing
Order 1/89, the Hon'ble Apex Court in
Noor Aga v. State of Punjab (2008) 16
SCC 417, held as under:-

"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 against the
prosecution."

28. It would be apt to indicate that
the conflict between the Standing Order
No. 1/89 and Section 52A (2) (c) of the
NDPS Act, related to sampling as Standing
Order No. 1/89 provides for at the spot of
seizure and sending the same to laboratory
within 72 hours whereas Section 52A
provides for sampling before a Magistrate,
and this conflict has been dealt with by the
Hon'ble Apex Court elaborately in Union
of India (UOI) v. Mohanlal and Ors. (2016)
3 SCC 379. The relevant paragraphs of the
said Judgment of the Hon'ble Apex Court
are reproduced hereunder:

"Seizure and sampling
12. Section 52A(1) of the
NDPS Act, 1985 empowers the
Central Government to prescribe
by a notification the procedure to
be followed for seizure, storage and
disposal of drugs and psychotropic
substances.
The
Central
Government has in exercise of that
power issued Standing Order No. 1
of 1989 which prescribes the
procedure to be followed while
conducting
seizure
of
the
contraband.
Two
subsequent
standing orders one dated 10-52007 and the other dated 16-12015 deal with disposal and
destruction of seized contraband
and do not alter or add to the
earlier
standing
order
that
prescribes
the
procedure
for
conducting seizures. Para 2.2 of
Standing Order No. 1 of 1989
states that samples must be taken
from the seized contraband on the
spot at the time of recovery itself. It
reads:
"2.2.
All
the
packages/containers
shall
be
serially numbered and kept in lots
for sampling. Samples from the
narcotic drugs and psychotropic
substances seized, shall be drawn
on
the
spot
of
recovery,
in
duplicate, in the presence of search
witnesses (panchas) and the person
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
from whose possession the drug is
recovered, and a mention to this
effect should invariably be made in
the panchnama drawn on the spot."
13. Most of the States,
however, claim that no samples are
drawn at the time of seizure.
Directorate of Revenue Intelligence
is by far the only agency which
claims that samples are drawn at
the time of seizure, while Narcotics
Control Bureau asserts that it does
not do so. There is thus no uniform
practice
or
procedure
being
followed by the States or the
Central agencies in the matter of
drawing of
samples.
This
is,
therefore, an area that needs to be
suitably addressed in the light of
the statutory provisions which
ought to be strictly observed given
the seriousness of the offences
under the Act and the punishment
prescribed by law in case the same
are proved. We propose to deal with
the issue no matter briefly in an
attempt to remove the confusion
that prevails regarding the true
position as regards drawing of
samples.
14.
Section
52A
as
amended by Act 16 of 2014, deals
with disposal of seized drugs and
psychotropic substances. It reads:
"52A.Disposal of seized
narcotic drugs and psychotropic
substances.-(1)
The
Central
Government may, having regard to
the
hazardous
nature
of
any
narcotic drugs or psychotropic
substances, their vulnerability to
theft, substitution, constraints of
proper storage space or any other
relevant
considerations,
by
notification
published
in
the
Official
Gazette,
specify
such
narcotic drugs or psychotropic
substances or class of narcotic
drugs or class of psychotropic
substances which shall, as soon as
may be after their seizure, be
disposed of by such officer and in
such manner as that Government
may, from time to time, determine
after
following
the
procedure
hereinafter specified.
(2) Where any narcotic
drug or psychotropic substance has
been seized and forwarded to the
officer in charge of the nearest
police station or to the officer
empowered under Section 53, the
officer referred to in sub-section (1)
shall prepare an inventory of such
narcotic drugs or psychotropic
substances containing such details
relating
to
their
description,
quality, quantity, mode of packing,
marks, numbers or such other
identifying
particulars
of
the
narcotic drugs or psychotropic
substances or the packing in which
they are packed, country of origin
and other particulars as the officer
referred to in sub-section (1) may
consider relevant to the identity of
the narcotic drugs or psychotropic
substances in any proceedings
under this Act and make an
application, to any Magistrate for
the purpose of-

(a)
certifying
the
correctness of the inventory so
prepared; or
(b) taking, in the presence
of such Magistrate, photographs of
such drugs or substances and
certifying such photographs as
true; or
7 All. Sajeb Ali @ Shakeel Vs. State of U.P.
1073
(b) taking, in the presence
of such Magistrate, photographs of
such drugs or substances and
certifying such photographs as
true; or
(c)
allowing
to
draw
representative samples of such
drugs
or
substances,
in
the
presence of such Magistrate and
certifying the correctness of any list
of samples so drawn.
(3) When an application is
made under sub-section (2), the
Magistrate shall, as soon as may
be, allow the application.
(4)
Notwithstanding
anything contained in the Indian
Evidence Act, 1872 (1 of 1872) or
the Code of Criminal Procedure,
1973 (2 of 1974), every court trying
an offence under this Act, shall
treat the inventory, the photographs
of narcotic drugs, psychotropic
substances, controlled substances
or conveyances and any list of
samples drawn under sub-section
(2) and certified by the Magistrate,
as primary evidence in respect of
such offence."
15. It is manifest from
Section 52A(2)(c) (supra) that upon
seizure of the contraband the same
has to be forwarded either to the
officer-in-charge of the nearest
police station or to the officer
empowered under Section 53 who
shall prepare an inventory as
stipulated in the said provision and
make
an
application
to
the
Magistrate for purposes of
(a)
certifying
the
correctness of the inventory, (b)
certifying photographs of such
drugs or substances taken before
the Magistrate as true, and (c) to
draw representative samples in the
presence of the Magistrate and
certifying the correctness of the list
of samples so drawn.
16.
Sub-section
(3)
of
Section 52A requires that the
Magistrate shall as soon as may be
allow the application. This implies
that no sooner the seizure is
effected
and
the
contraband
forwarded to the officer- in-charge
of the police station or the officer
empowered, the officer concerned
is in law duty-bound to approach
the Magistrate for the purposes
mentioned above including grant of
permission to draw representative
samples in his presence, which
samples will then be enlisted and
the correctness of the list of
samples so drawn certified by the
Magistrate. In other words, the
process of drawing of samples has
to be in the presence and under the
supervision of the Magistrate and
the entire exercise has to be
certified by him to be correct.

17.
The
question
of
drawing of samples at the time of
seizure which, more often than not,
takes place in the absence of the
Magistrate does not in the above
scheme of things arise. This is so
especially
when
according
to
Section 52A(4) of the Act, samples
drawn
and
certified
by
the
Magistrate in compliance with subsections (2) and (3) of Section 52A
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
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
claim to be taking samples at the
time of seizure.
18. Be that as it may, a
conflict
between
the
statutory
provision
governing
taking
of
samples and the Standing Order
issued by the Central Government
is evident when the two are placed
in
juxtaposition. There
is
no
gainsaid that such a conflict shall
have to be resolved in favour of the
statute
on
first
principles
of
interpretation but the continuance
of the statutory notification in its
present form is bound to create
confusion in the minds of the
authorities concerned instead of
helping them in the discharge of
their
duties.
The
Central
Government would, therefore, do
well, to re-examine the matter and
take suitable steps in the above
direction.
19.
Mr Sinha,
learned
Amicus Curiae, argues that if an
amendment of the Act stipulating
that the samples be taken at the
time of seizure is not possible, the
least that ought to be done is to
make it obligatory for the officer
conducting the seizure to apply to
the Magistrate for drawing of
samples and certification, etc.
without any loss of time. The officer
conducting the seizure is also
obliged to report the act of seizure
and the making of the application
to the superior officer in writing so
that there is a certain amount of
accountability
in
the
entire
exercise, which as at present gets
neglected for a variety of reasons.
There is in our opinion no manner
of doubt that the seizure of the
contraband must be followed by an
application for drawing of samples
and certification as contemplated
under the Act. There is equally no
doubt that the process of making
any such application and resultant
sampling and certification cannot
be left to the whims of the officers
concerned. The scheme of the Act
in general and Section 52A in
particular, does not brook any
delay in the matter of making of an
application or the drawing of
samples and certification. While we
see no room for prescribing or
reading a time-frame into the
provision, we are of the view that
an application for sampling and
certification ought to be made
without undue delay and the
Magistrate on receipt of any such
application will be expected to
attend to the application and do the
needful, within a reasonable period
and without any undue delay or
procrastination as is mandated by
sub-section (3) of Section 52A
(supra). We hope and trust that the
High Courts will keep a close
watch on the performance of the
Magistrates in this regard and
through the Magistrates on the
agencies that are dealing with the
menace of drugs which has taken
alarming
dimensions
in
this
country partly because of the
ineffective
and
lackadaisical
enforcement of the laws and
procedures and cavalier manner in
which the agencies and at times
Magistracy
in
this
country
addresses a problem of such
serious dimensions."
xxxxxx
31. To sum up we direct as
under:
7 All. Sajeb Ali @ Shakeel Vs. State of U.P.
1075
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 52A(2) of the Act,
which shall be allowed by the
Magistrate as soon as may be
required under sub-section (3) of
Section 52A, 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.
31.2. The
Central
Government and its agencies and
so also the State Governments shall
within six months from today take
appropriate steps to set up storage
facilities for the exclusive storage
of seized narcotic drugs and
psychotropic
and
controlled
substances and conveyances duly
equipped with vaults and doublelocking system to prevent theft,
pilferage or replacement of the
seized
drugs.
The
Central
Government
and
the
State
Governments shall also designate
an officer each for their respective
storage facility and provide for
other steps, measures as stipulated
in Standing Order No. 1 of 1989 to
ensure proper security against
theft, pilferage or replacement of
the seized drugs.
31.3. The
Central
Government
and
the
State
Governments shall be free to set up
a storage facility for each district
in the States and depending upon
the extent of seizure and store
required, one storage facility for
more than one districts.
31.4.