JUDGMENT Hon'ble MEHTA, J.—The instant appeal has been preferred by the appellant Jagdish Chand against the judgment dated 2.9.2008 passed by the learned Special Judge, N.D.P.S. Act Cases, Hanumangarh in Sessions Case No.40/2005 whreby he was convicted for the offence under Section 8/15(b) of the N.D.P.S. Act and was sentenced to undergo ten years' rigorous imprisonment and a fine of Rs.1,00,000/-. In default of payment of fine, he was further directed to undergo two years and six months' rigorous imprisonment. 2. Succinctly stated, the facts of the case are that the S.H.O., P.S. Sangaria - PW-14 Prithvi Singh allegedly received an information on 21.8.2005 that the appellant was indulged in illegal trade of contraband poppy straw. The informer also told that the appellant had concealed two bags of poppy straw in his shop. An apprehension was expressed that if the action was not taken immediately, he would probably alienate the contraband. 3. The information was taken down in writing and a copy thereof was sent to the S.P., Hanumangarh. Thereafter, the S.H.O. formed a raid party and proceeded to the Bus Stand Rasuwala. Two persons namely, Labh Singh and Gurmel Singh were summoned and they have their consent to remain as motbirs for associating in the search. The team thereafter reached the shop of the appellant Jagdish in Rasuwala. It is alleged that a man was fond present inside the shop. On asking his name, he revealed his identity as Jagdish S/o Sohan Lal Soni R/o Rasuwala, the appellant herein. Jagdish was informed about the source information and after taking his consent, the S.H.O. entered the shop. On searching the shop, two gunny bags were recovered which were containing some material. The bags were opened and on testing and smelling the material, it gave poppy straw like flavour. The appellant could not show any license or permit etc. for being in possession of the contraband. The gunny bags were weighed and each bag ws found to be weighing 36 kgs. including the weight of the packing material. The S.H.O. thereafter mixed the contents of both the bags on a 'Tirpal' and collected two samples of 1 kg. each from the admixture. The samples were marked as 'A' and 'B'. After taking out the samples, the remaining contraband poppy straw was re-packed in the same bags and the bags were marked as 'C' and 'D'. The S.H.O. thereafter mixed the contents of both the bags on a 'Tirpal' and collected two samples of 1 kg. each from the admixture. The samples were marked as 'A' and 'B'. After taking out the samples, the remaining contraband poppy straw was re-packed in the same bags and the bags were marked as 'C' and 'D'. The samples as well as contraband were sealed. The accused was arrested. On the basis of the recovery, an F.I.R. No. 345/05 for the offences under Sections 8/15 and 8/29 of the N.D.P.S. Act was registered against the appellant and investigation commenced. The main sample was forwarded to F.S.L. for analysis from where a report was received that the sample gave positive test for presence of chief constituents of opium and hence, it was of dried crushed capsules of poppy from which juice had been extracted. 4. After completion of investigation, the police filed a charge-sheet in the court concerned against the appellant for the offence under Section 8/15 of the N.D.P.S. Act and against the co-accused Jagshir Singh under Sections 8/15 and 8/29 of the N.D.P.S. Act. The trial framed charge against both the accused for the aforesaid offences. Both the accused pleaded not guilty and claimed trial. The prosecution examined fourteen witnesses in support of its case. The accused in their statements under Section 313 Cr.P.C. denied the prosecution allegations but chose not to lead any evidence in defence. 5. The learned trial Judge at the conclusion of the trial proceeded to acquit the co-accused Jagshir Singh but convicted and sentenced the appellant as above. Hence this appeal. 6. The original record of the case went missing from the Registry of this Court on 21.11.2011 and, therefore, the learned counsel for the appellant was directed to file the copies of the documents on record. He has submitted the copies of the documents and statements of the witnesses examined at the trial on record. 7. The principle arguments advanced by learned counsel for the appellant are noted herein below: (i) The total weight of the recovered substance is mentioned as 36 kgs. He has submitted the copies of the documents and statements of the witnesses examined at the trial on record. 7. The principle arguments advanced by learned counsel for the appellant are noted herein below: (i) The total weight of the recovered substance is mentioned as 36 kgs. only in he notice issued to the accused to show cause as to why he should not be arrested (Ex.P/6); specimen memo of seal (Ex.P/8(; and the document whereby the specimen memo of seal was handed view to witness (Ex.P/9); (ii) that both the motbirs did not support the prosecution case and thus, the total prosecution case should be discarded. (iii) that the exclusive samples from the two separate gunny bags were not taken out by the Seizure Officer and thus, it cannot be concluded with any deal of certainty that both the gunny bags contained poppy straw. (iv) Learned counsel for the appellant thus submitted that the appellant deserves to be acquitted of the charge. (v) In the alternative, it was argued that at best, it can be held that 36 kgs. of poppy straw, which is below commercial quantity, was recovered from the appellant's shop. Thus, he prayed that the sentence awarded to the appellant be reduced for the period already undergone by him. 8. The learned Public Prosecutor on the other hand vehemently opposed the submissions advanced by the learned counsel for the appellant. He contended that the seizure documents which bear the appellant's signatures clearly refer to recovery of 72 kgs. of poppy straw from two separate gunny bags weighing 36 kgs. each. He submitted that the sample which was forwarded to the F.S.L. gave positive test for poppy straw. Thus, he submitted that the appeal deserves to be rejected. 9. Heard and considered the arguments advanced at the bar and perused the impugned judgment as well as the record of the case. 10. The relevant portions of the documents which have been referred to by the learned counsel for the appellant are noted herein below: - In the seizure memo (Ex.P/3), the Seizure Officer has mentioned that the contents of both the gunny bags were mixed on a "tripal" and therafter, two samples of 1 kg each were taken out. It has also been mentioned that the specimen memo of seal (Ex.P/8) and memo to show cause before arrest (Ex.P/6) were prepared at the time of seizure. It has also been mentioned that the specimen memo of seal (Ex.P/8) and memo to show cause before arrest (Ex.P/6) were prepared at the time of seizure. - Ex.P/6 the notice issued to he accused to show cause as to why he should not be arrested, mentions the fact that 36 kgs. of poppy straw was recovered from 2 gunny bags lying in the appellant's shop. - Likewise, in Ex.P/8 the specimen memo of seal, it has been mentioned that 36 kgs. of illicit poppy straw was recovered in the 2 gunny bags from the appellant's shop. - The Seizure Officer P.W.-14 Prithvi Singh was confronted with both these documents Ex.P/6 and Ex.P/8 in his cross-examination and he admitted the contents of the documents Ex.P/6 and Ex.P/8 to be correct. The relevant portion of the statement of Seizure Officer is quoted hereinbelow: ^^;g lgh gS fd izn'kZ ih@6 QnZ esas ntZ rF; lgh gksus ij eSaus gLrk{kj fd;s gS ;g ckr lgh gS fd ;g QnZ eSaus ekSds ij rS;kj dh gSA ;g ckr lgh gS fd izn'kZ ih@7 ij lgh gksus ij eSaus gLrk{kj fd;s gSA izn'kZ ih@8 o ih@9 esa vafdr rF; lgh gksus ij eSaus gLrk{kj fd;s FksA izn'kZ ih@6 esa vkbZ ls ts fgLlk esa 36 fdyksxzke fy[kk gqvk gSA** - The Seizure Officer whilst being examined in chief regarding the sampling procedure adopted by him, stated as below: ^^nksuksa cksjh tks nqdku ds vUnj Fkh mudh ogha nqdku ij <sjh ij ns[kk x;k lwa?kk x;k o p[kk x;k rks mu nksuksa cksfj;ksa esa 36-36 fdyksa voS/k iksLr gksuk ik;k x;kA ml iksLr esa ls ,d fdyks daVksy lSEiy o ,d fdyks lSEiy o lSEiy ij ekdZ , o lh yxk;k x;kA** 11. Thus, it is admitted situation that the Seizure Officer did not care to collect separate and exclusive samples from both the gunny bags. It is also not in dispute that no test n the recovered article was carried out by the U.N. testing kit so as to ascertain that the recovered article was a narcotic. Thus, it is admitted situation that the Seizure Officer did not care to collect separate and exclusive samples from both the gunny bags. It is also not in dispute that no test n the recovered article was carried out by the U.N. testing kit so as to ascertain that the recovered article was a narcotic. In this view of the matter, it was essential for the Seizure Officer to have collected separate and exclusive samples from each gunny bag and to have forwarded them for analysis to F.S.L. The failure on the part of the Seizure Officer to collect the exclusive samples from the two gunny bags clearly leads to the situation where it cannot be held with certainty that the article packed in both the gunny bags was poppy straw. Thus, the learned trial Judge was wrong in holding that both the gunny bags contained a total of 72 kgs. contraband poppy straw. This aspect was considered by this Court in the case of Net Ram vs. State of Rajasthan (S.B. Criminal Appeal No. 673/2008) decided on 18.10.2013 wherein this Court has held as under:- In my opinion, the appeal filed by the appellant can be decided on the first argument alone. It is the admitted case as per the seizure memo Ex.P/1 and the testimony of the seizure officer PW8 Mahendra Dutt that two gunny bags weighing 40 kgs. each were recovered from the store on the first floor of the house of the accused. Though no procedure is prescribed either in the N.D.P.S. Act or in the N.D.P.S. Rules regarding the manner in which the samples are to be drawn but a Standing Instruction No.1/88 has been issued by the Narcotics Control Bureau, New Delhi in this regard. Instruction 1.7 prescribes the manner in which the samples are to be drawn in each seizure case. Instruction 1.7 reads as under :- “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. Instruction 1.7 reads as under :- “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. 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). It has been provided in Instruction 1.7 (b) that where 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 respects then 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. 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. Thus, in the aforesaid situations, a representative sample can be drawn after bunching together the contents of numerous packages. 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 this case, no such colour test by U.N. Kit was conducted on the two packages/gunny bags by the seizure officer before collecting the representative sample. Hence, the Investigating Officer was under an obligation to collect separate samples from each of the gunny bags so that the analysis of the contents of each of the gunny bag could be performed individually. As the seizure officer before drawing the samples, proceeded to mix the contents of the gunny bags without subjecting them to the test by the U.N. Kit, the accused has a right to contend that one of the gunny bags might not have contained contraband poppy straw. If at all the prosecution desired to prove that both the gunny bags contained poppy straw, then it was essential for the samples to have been collected and analysed individually from both the gunny bags or else, the test by U.N. Kit should have been carried out on the material present in both the bags. The Hon'ble Apex Court considered a similar issue in the case of Gaunter Edwin Kircher vs. State of Goa reported in AIR 1993 SC 1456 and observed as below:- “5. we shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms. and 5 gms. respectively. As already mentioned only one piece was sent for chemical analysis and P.W.1 the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms.. from this report alone it cannot be presumed or inferred that the substance in other piece weighing 7 gms. also contained Charas. and 5 gms. respectively. As already mentioned only one piece was sent for chemical analysis and P.W.1 the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms.. from this report alone it cannot be presumed or inferred that the substance in other piece weighing 7 gms. also contained Charas. It has to be borne in mind that the act applies to certain narcotic drugs and psychotropic substances and not all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms. of Charas was recovered from the accused. In view of the evidence of P.W.1 it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms. was recovered from the accused. The failure to send the other piece has given rise to this inference. We have to observe that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not practicable in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law.” This Hon'ble Court also in the case of Ghewar Ram (supra) held that the procedure adopted by the seizure officer in mixing the articles contained in different bags and collecting a single sample from the same and having it analysed by the F.S.L., was defective and caused prejudice to the accused. In view of the aforesaid factual scenario, this Court is of the opinion that the highest case which the prosecution has been able to prove is that one of the bags seized by the seizure officer in this case contained poppy straw. It cannot be held affirmatively that both the seized bags contained contraband poppy straw. Each of the bag was allegedly weighing 40 kgs. Thus, the accused at best can be held liable for being found in possession of 40 kgs. of contraband poppy straw and nothing beyond that. It cannot be held affirmatively that both the seized bags contained contraband poppy straw. Each of the bag was allegedly weighing 40 kgs. Thus, the accused at best can be held liable for being found in possession of 40 kgs. of contraband poppy straw and nothing beyond that. The act of the seizure officer in not drawing exclusive samples from both the gunny bags, entitles the accused to raise the issue regarding one of the bags not containing poppy straw and the argument has to be accepted." 12. That apart, the memo of reasons to arrest (Ex.P/6) and the specimen memo of seal (Ex.P/8), the contents whereof were admitted by the Seizure Officer, mention that 36 kgs. of poppy straw was recovered from the shop of the appellant. Therefore, the appellant's conviction as recorded by the learned trial Judge for having been found in possession of 72 kgs. of poppy straw cannot be sustained. Instead, he is liable to be convicted for possessing 36 kgs. of poppy straw which is below the commercial quantity. The learned trial Judge has convicted the appellant holding him to be in possession of 72 kgs. of poppy straw and yet the sentence has been passed under Section 8/15(b) of the N.D.P.S. Act. Section 8/15(b) of the N.D.P.S. Act deals with the contravention involving lesser than commercial quantity but greater than small quantity. As a matter of fact, if at all the appellant was held guilty of possessing 72 kgs. of poppy straw, then he should have been convicted and sentenced for the offence under Section 8/15(c) of the N.D.P.S. Act and not under Section 8/15(b) of the N.D.P.S. Act. However, in view of the finding which has been arrived at by this Court that the appellant can only be held guilty for being in possession of 36 kgs. of poppy straw (less than commercial quantity and more than small quantity), the appellant's conviction has to be recorded under Section 8/15(b) of the N.D.P.S. Act. 13. As a result of the aforesaid discussion, the appeal succeeds in part. Whilst setting aside the appellant's conviction and sentences as recorded by the learned Special Judge, N.D.P.S. Act Cases, Hanumangarh by the judgment dated 2.9.2008 for being found in possession of 72 kgs. of poppy straw, the appellant is convicted for being found in possession of 36 kgs. 13. As a result of the aforesaid discussion, the appeal succeeds in part. Whilst setting aside the appellant's conviction and sentences as recorded by the learned Special Judge, N.D.P.S. Act Cases, Hanumangarh by the judgment dated 2.9.2008 for being found in possession of 72 kgs. of poppy straw, the appellant is convicted for being found in possession of 36 kgs. of poppy straw and thus, he is liable to be sentenced under Section 8/15(b) of the N.D.P.S. Act. 14. The appellant is in continuous custody since the date of judgment i.e. 2.9.2008 and is reported to have suffered some custodial period during trial. In this view of the matter, this Court is of the opinion that the sentence already suffered by the appellant till date shall serve the ends of justice. The sentence of fine is reduced to Rs.5,000/-. In default of payment of fine, he shall further undergo one month's imprisonment. The appellant is in custody. He shall be set at liberty forthwith upon depositing the fine, if not wanted in any other case.