JUDGMENT (Per : Hon'ble Mr. Justice Shyam Kishore Sharma) 1. The sole appellant Nazir Mian has assailed the judgment of conviction dated 1.12.2010 and order of sentence dated 2.12.2010 passed by the learned 1st Additional Sessions Judge-cum-Judge, Special Court, East Champaran at Motihari in N.D.P.S. Case No. 16 of 2008 convicting the appellant under Section 20(b)(ii)(c) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'Act') and sentencing him to undergo rigorous imprisonment for fourteen years and to pay a fine of Rs. 1,40,000/- and in case of default in payment of fine to further rigorous imprisonment for six months. 2. One Shivendra Satyarthi (P.W. 2), Inspector Customs (Preventive) Division, Motihari sent a prosecution report to the Sessions Judge-cum-Special Judge of the Act, Motihari alleging therein that on 23.1.2008, he received a secret information from the informer that packets of Nepali Charas were secreted in a cavity made in the seat and its back of a Bolero Jeep bearing registration no. UP-60D/3744 and was supposed to come from Karamawa, Raxaul side and destined to Bhagalpur via Ramgarhwa-Chailaha Motihari. The preventive team under the leadership of the Superintendent alongwith two Punches rushed to Chailaha - Ramgarhwa brick soiling road and caught the vehicle and driver was caught but two others occupants of Bolero succeeded in fleeing away. In course of chasing the drug traffickers, four round firing was made in the air to terrorize them. The driver introduced himself as Nazir Mian, son of late Sahdin Mian resident of Village - Kanana, P.O.-Korihar, P.S.-Raxaul, District - East Champaran and on his disclosure before the preventive team, a cavity in the seat and its back of the recovered Bolero vehicle containing 120 K.Gs. Charas was secreted into it. As it was lonely place, there was darkness everywhere and it was not safe, the preventive team returned to the Customs (Preventive) Division Office, Motihari alongwith the accused driver, recovered Bolero vehicle and two witnesses for further formalities. In the presence of witnesses, accused and the officers the recovered packets were counted and weighed which came 121 in numbers and 120 Kgs. in weight which was assessed to Rs. 36,00,000/-. Three representative samples of the recovered Charas were also drawn in the presence of the Punches for the chemical test. The prosecution report was submitted. Cognizance was taken and charges under Sections 20(b)(ii)(c) and 23(c) of the Act were framed. in weight which was assessed to Rs. 36,00,000/-. Three representative samples of the recovered Charas were also drawn in the presence of the Punches for the chemical test. The prosecution report was submitted. Cognizance was taken and charges under Sections 20(b)(ii)(c) and 23(c) of the Act were framed. The appellant denied the charges and then trial proceeded. 3. The defence of the appellant was of false implication and also that the appellant was stranger and he was falsely roped in. 4. To prove its case, the prosecution has examined five witnesses. They were P.W. 1 Rabindra Nath Rai (Custom Superintendent), P.W. 2 Shivendra Satyarthi (Custom Inspector), P.W. 3 Ashok Kumar Singh (Godown In-charge), P.W. 4 Abid Hussain (Constable, Central Excise) and P.W. 5 Sanjeev Kumar (Inspector, Central Excise). 5. The prosecution has exhibited the required documents to prove the charges which were interrogatory statement of the Nazir Mian (Ext.-1), Chemical Test Report (Ext.-2), Punches Statement (Ext.-3), Seizure Memo ( Ext.-4), Panch nama (Ext.-5), Memo of Arrest (Ext.-6), Official complain (Ext.-l), Correction Petition (Ext.-l/A), Destruction Report (Ext.-8) and a letter dated 24.1.2008 (Ext.-9). 6. The defence has exhibited a document, which has been marked as Ext.-A. 7. The informant has stated that on 23.1.2008 while he was posted as Custom Inspector at Motihari then at about 3.00 P.M., he got confidential information that a Bolero Jeep has proceeded containing Charas to Bhagalpur from Raxaul via Ramgadhya Chelha Railway Crossing. The information was passed on to the superior authorities and a team headed by Rabindra Nath Rai (P.W. 1) was constituted besides the informant. Team consisted of Sanjeev Kumar (P.W. 5), Havildar Janak Baitha (not examined), Constable C.L. Murmu (not examined), Constable Balwant Singh (not examined), Hawildar Ashok Kumar (P.W. 3), Constable Satyendra Kumar Singh (not examined), Constable Balwant Singh (not examined) and Constable Avid Hussain (not examined) and Custom Superintendent, R.N. Ray. The informant went to Chelha Railway Crossing. After sometime, team saw a Bolero Jeep coming from the side of Raxaul. After seeing the authorities, the driver tried to flee away with the vehicle, but the vehicle was chased and the person, who was caught, disclosed his name as Nazir Mian and he gave the names of others. He told that Charas have been kept in the cavity between seat and back of the Bolero. There was darkness. After seeing the authorities, the driver tried to flee away with the vehicle, but the vehicle was chased and the person, who was caught, disclosed his name as Nazir Mian and he gave the names of others. He told that Charas have been kept in the cavity between seat and back of the Bolero. There was darkness. Therefore, the informant proceeded towards Custom Office, Motihari alongwith independent witnesses Bhola Ram and Ramji Prasad.(both not examined) alongwith vehicle. The seat was broken and 120 packets of Charas weighing 120 Kgs. was seized. The accused was interrogated who confessed his guilt and his interrogatory statement (Ext.3) was taken. Seizure memo (Ext.-4) and Panchnama (Ext.-5) were prepared. Some packets were torn and three samples of 25 grams each were taken and sent for chemical examination. The report (Ext.-2) was received and again interrogatory statement of the accused (Ext.-1) was taken. After arrest of the accused, arrest memo was prepared (Ext.-6) and official complaint (Ext.-7) was prepared. A typing error has erupted in the official complaint as Ganja was mentioned in place of Charas. Ext.-7 was filed for correction of that. The genuineness of Bolero vehicle was ascertained from the company and the company reported that engine number and chassis number were not correct and interpolation was made. Nothing was seized from the person of the accused. 8. The evidence of P.W. 2 indicates that in the evening of 23.1.2008, he was working as Inspector of Customs and he has participated in raid, which led to arrest of the accused as well as the seizure of a Bolero containing contraband articles. Regarding sampling, he has stated that samples were taken and these were sent for chemical examination. The report indicated that the seized samples were of Charas. 9. P.W. 1 Superintendent of Custom has supported about the factum of seizure of Bolero Jeep and packets and according to him 5-6 packets were opened and some samples of 25 grams were sent for chemical examination. 10. P.W. 3 is other members of the raiding party. He has stated that he was a member of raiding party and has participated in the raid. Similar is the evidence of P.W. 4. He has stated that at the time of being caught the accused was saying that the vehicle was not his and vehicle was of another person. 11. P.W. 3 is other members of the raiding party. He has stated that he was a member of raiding party and has participated in the raid. Similar is the evidence of P.W. 4. He has stated that at the time of being caught the accused was saying that the vehicle was not his and vehicle was of another person. 11. P.W. 5 has stated about the search and seizure and it has been stated that seized Charas was weighed in front of him. He has stated that all the packets were weighed together and 121 packets were found. Some packets were opened. In cross-examination, he has stated that from three packets only samples were taken and other packets were left untouched. 12. The learned counsel for the appellant has submitted that the entire prosecution evidence is vague and the prosecution has not followed the mandatory provisions of Section 42(2). It has also been submitted that search and sample were not done in the legal manner; rather the prosecution was anyhow interested in lodging the case. 13. The seized sample was sent to Kolkata for chemical examination and sent samples were examined and the report was received. Therefore, the prosecution has not been able to establish that samples were chemically examined. The punishment under the Act varies according to quantum of recovery. The table prescribed in N.D.P.S. Act has three categories of punishment-one is for carrying contraband articles within the limit of small quantity and second category is the punishment for carrying contraband articles between small and commercial quantity and 3rd criteria is for carrying of contraband article beyond commercial quantity. All the contraband articles have been defined in the table and it has been prescribed that what is the small quantity and what is commercial quantity. Thus, the second category is between small and commercial quantity. Narcotics Control Bureau, New Delhi has its own instruction with regard to sampling the contraband articles. The provisions of the Act are stringent. Therefore, strict procedure has been prescribed under the Act and it mandates authorities to follow the entire procedure laid down in it. The Act contains many restrictions to the authorities also and it has been done considering the rigors of punishment, which has been provided under the Act. So procedures have to be followed strictly. Therefore, strict procedure has been prescribed under the Act and it mandates authorities to follow the entire procedure laid down in it. The Act contains many restrictions to the authorities also and it has been done considering the rigors of punishment, which has been provided under the Act. So procedures have to be followed strictly. It is for this purpose that the Narcotics Control Bureau has issued Standing Instruction No. 1/88, which prescribes the manner of taking sample. This notification was issued because the punishment varies from the quantum. If the drugs seized are found in the packages/containers the same should be serially numbered for the purpose 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 numbers should be assigned to each package/container. Besides, the serial number, the gross and net weight, particular of the drug and the date of seizure should invariably 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. 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 case 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. 14. In the case before hand, the sampling was required to be done in the manner as prescribed by the Standing Instruction of the Narcotics Control Bureau meaning thereby that there should have been 121 samples because nowhere there is indication that all the packets were identical. The evidence is that the seized packets were not identical. If these packets were not identical then only way of sampling was that samples from each packets in duplicate to have been drawn. If that also not possible then a homogeneous mixture was to be prepared and then samples were required to be drawn. None of these criteria for sampling were followed. If these packets were not identical then only way of sampling was that samples from each packets in duplicate to have been drawn. If that also not possible then a homogeneous mixture was to be prepared and then samples were required to be drawn. None of these criteria for sampling were followed. For proving case onus is upon the prosecution and it was mandated to show and establish that the seized articles were Charas in commercial quantity. This could have been proved if the procedure prescribed for taking samples were followed. If these were not followed and only formalities of sampling were done then it cannot be presumed that all the packets contain Charas. For proving the charge that the accused was carrying Charas of commercial quantity, the onus was upon the prosecution to prove that the samples drawn were enough to establish that Narcotic. Drugs and Psychotropic Substances were commercial quantity. More mentioning of 121 packets cannot be said to be sufficient to establish the charge of carrying of drugs as commercial quantity. It cannot be said that the prosecution has succeeded in establishing the charge that on the date and time the accused was carrying contraband articles in commercial quantity. It has also not been established that the seized contraband articles was between small or commercial quantity for that also it was also required to establish that it was beyond the limit prescribed for small quantity and less than the commercial quantity that of evidence is also lacking. Hence, the prosecution has succeeded to establish and prove only to the extent that on the date and time, the accused was in possession of contraband articles i.e. Charas, but the quantity has not been established. So, it cannot be said that the seizure from the accused/appellant could be of small quantity for which he cannot be punished under Section 20(b)(ii)(c). The appellant has remained in custody since the date of occurrence i.e. 23.1.2008. No previous conviction has been proved against him. So, it is held that the period already undergone in custody by the appellant during trial and appeal are sufficient to meet the ends of justice. 15. In the result, the appeal is dismissed with the aforesaid modification in the sentence. The appellant is directed to release forthwith, if not wanted in any other case.