JUDGMENT : ARVIND SINGH CHANDEL, J. 1. The instant appeal has been preferred by the accused persons against judgment dated 16.2.2018 passed by the Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth ‘the NDPS Act’) Saraipali, District Mahasamund in Special Criminal Case No. 14 of 2016, whereby the accused persons/Appellants have been convicted and sentenced as under: Conviction Sentence Under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 Rigorous imprisonment for 10 years and fine of Rupees One Lakh, in default of payment thereof, additional rigorous imprisonment for 2 years 2. Case of the prosecution is that on 30.8.2015 K.B. Dwivedi (PW-12), who was Station House Officer of Police Station Saraipali along with staff members and witnesses Babulal (PW-3) and Sarthi Sao (PW-6) were searching suspicious vehicles near Village Baitari at about 9 AM. A suspicious vehicle/car bearing Registration No. OD-05C-9973, which was coming from Odisha side, reached there. When a signal was given to stop the vehicle, the driver of the vehicle tried to flee from there. The vehicle was however stopped. Appellant Rajesh was driving the vehicle and Appellant Karunakar was sitting with Appellant Rajesh in the vehicle. On being asked, they informed that Ganja was kept in the vehicle. Executive Magistrate and Sub-Divisional Officer (Police) of Saraipali were informed about the incident and the Executive Magistrate was requested through mobile phone for his presence at the spot during the time of search. Further case of the prosecution is that on being searched, 100 packets of Ganja were found in the vehicle. Each packet contained 1 kg. Ganja. All the packets were opened and the Ganja kept therein was mixed. 2 sample packets each containing 100 gms. Ganja were prepared and marked as A1 and A2. Remaining Ganja was kept in 4 bags and all the 4 bags were sealed and marked as A, B, C, D. The sample packets and the 4 bags were seized. On completion of other formalities on the spot, the Station House Officer returned to the police station and First Information Report was registered. The seized articles were deposited in the Malkhana and acknowledgment thereof was obtained. Information was sent to the higher officer regarding the entire proceedings. Both the sample packets were sent to Forensic Science Laboratory (FSL) for chemical examination. Report of the FSL is Ex.P39. The FSL found the substance to be Ganja. The seized articles were deposited in the Malkhana and acknowledgment thereof was obtained. Information was sent to the higher officer regarding the entire proceedings. Both the sample packets were sent to Forensic Science Laboratory (FSL) for chemical examination. Report of the FSL is Ex.P39. The FSL found the substance to be Ganja. Statements of witnesses were recorded. On completion of the investigation, a charge-sheet was filed against the Appellants as well as coaccused Saraswati Behra (acquitted), who was owner of the vehicle. The Trial Court framed charges. In support of its case, the prosecution examined as many as 12 witnesses. In examination under Section 313 Cr.P.C. the accused persons denied the guilt and pleaded innocence. No witness was examined in defence. On completion of the trial, the Trial Court acquitted co-accused Saraswati Behra of all the charges framed against her, but, convicted and sentenced the present Appellants as mentioned in first paragraph of this judgment. Hence, the instant appeal. 3. Learned Counsel appearing for the Appellants submitted that without there being any sufficient and clinching evidence on record the Trial Court has convicted the Appellants. The provisions of Section 55 of the NDPS Act have not been duly complied with. Learned Counsel further submitted that Standing Order No. 1/88 dated 15.3.1988 issued by the Narcotics Control Bureau and Standing Order No. 1/89 dated 13.6.1989 issued under sub-section (1) of Section 52A of the NDPS Act by the Department of Revenue, Ministry of Finance, Government of India have also not been complied with. The provisions of Section 52A of the NDPS Act have also not been followed. Therefore, the entire case of the prosecution appears to be doubtful and the Appellants are entitled to get benefit of doubt. Reliance was placed on the judgment in Simarnjit Singh vs. State of Punjab, Criminal Appeal No. 1443 of 2023 passed by the Supreme Court on 9.5.2023, the judgment of High Court of Delhi reported in Amani Fidel Chris vs. Narcotics Control Bureau, 2020 SCC Online Del. 2080. Reliance was also placed on the judgment passed by the Supreme Court reported in Union of India vs. Bal Mukund, (2009) 12 SCC 161 . 4. Learned Counsel appearing for the Respondent/State opposed the arguments raised on behalf of the Appellants and submitted that considering the entire evidence adduced by the prosecution the Trial Court has rightly convicted the Appellants. 5. 4. Learned Counsel appearing for the Respondent/State opposed the arguments raised on behalf of the Appellants and submitted that considering the entire evidence adduced by the prosecution the Trial Court has rightly convicted the Appellants. 5. I have heard the rival contentions put-forth on behalf of the parties and perused the entire evidence available on record both oral and documentary with due care. 6. The independent witnesses, namely, PW-3 Babulal and PW-6 Sarthi Sao have not supported the case of the prosecution and turned hostile. PW-2 Sunil Agrawal, a witness of weighing has also not supported the case of the prosecution and turned hostile. PW-4 Naib Tahsildar Sitaram Kanwar is the witness who was called and present at the time of making of seizure memo (Ex.P11 and P12) and was also present at the time of making of mixing (samras) panchnama (Ex.P3). PW-5 Constable Ajay Kumar is the witness who informed the higher officer regarding the entire proceedings vide Ex.P18. PW-7 Patwari Gajendra Prasad is the witness who prepared spot map (Ex.P22). Baliram Singh (PW-8) was Malkhana Moharrir/Head Constable, who deposited the seized articles in the Malkhana. PW-9 Constable Rajendra Prasad is the witness who deposited the sample packets A1 and A2 in the FSL. PW-10 Deputy Collector Atul Vishwakarma is the witness who made an inventory in compliance of the provisions of Section 52A of the NDPS Act. PW-12 K.B. Dwivedi is the witness who investigated into the offence in question. 7. The first contention of Learned Counsel appearing for the Appellants was that the provisions of Section 55 of the NDPS Act have not been duly complied with. Undisputedly, PW-12 Investigating Officer K.B. Dwivedi was the Station House Officer of Police Station Saraipali. In his Court statement, this witness has deposed that after mixing the recovered Ganja, he prepared 2 sample packets each containing 100 gms. Ganja and marked them as A1 and A2. This witness further deposed that all the articles including the sample packets were deposited in the Malkhana. However, I do not find any document on record to show that after preparing of mixing (samras) panchnama any sample packet, as stated by this witness, was prepared and marked as A1 and A2. This witness in his Court statement has also not stated anything that at the time of preparing sample packets he affixed any seal on the packets. However, I do not find any document on record to show that after preparing of mixing (samras) panchnama any sample packet, as stated by this witness, was prepared and marked as A1 and A2. This witness in his Court statement has also not stated anything that at the time of preparing sample packets he affixed any seal on the packets. The entries of Malkhana Register (Ex.P25) only show that 100 packets of 1 kg. each containing total 100 kgs. Ganja was deposited in the Malkhana. There is no entry in the Malkhana Register that any sample packet marked as A1 and A2 were deposited in the Malkhana. The seized articles were handed over to Malkhana Moharrir Baliram Singh (PW-8) vide Ex.P24, wherein the Malkhana Moharrir endorsed his acknowledgment. In the said memo also, there is no mention that any sample packets marked as A1 and A2 were deposited in the Malkhana. These facts have also been admitted by PW-8 Malkhana Moharrir Baliram Singh. A careful perusal of the FSL Report (Ex.P39) also shows that the sample packets sent to the FSL contained seal of Police Station Saraipali not the seal of Station House Officer of Police Station Saraipali. Section 55 of the NDPS Act runs as under: “55. Police to take charge of articles seized and delivered - An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” 8. A careful perusal of Section 55 of the NDPS Act clearly goes to show that Section 55 requires that the officer-in-charge of the police station (in the instant case PW-12 K.B. Dwivedi) was to seal the sample packets with his own seal. But, this has not been done in the instant case. A careful perusal of Section 55 of the NDPS Act clearly goes to show that Section 55 requires that the officer-in-charge of the police station (in the instant case PW-12 K.B. Dwivedi) was to seal the sample packets with his own seal. But, this has not been done in the instant case. No explanation has also come from the prosecution in this regard that as to why the officer-in-charge PW-12 K.B. Dwivedi did not affix his own seal as required under Section 55 of the NDPS Act before depositing the seized articles in the Malkhana. Thus, a clear violation of Section 55 of the NDPS Act appears in this case. 9. From the statements of PW-12 Investigating Officer K.B. Dwivedi and PW-8 Baliram Singh Malkhana Moharrir and from perusal of the entries of the Malkhana Register (Ex.P25) and the memo (Ex.P24) vide which the seized articles were deposited in the Malkhana, it is clear that the sample packets A1 and A2 were prepared at the spot and any seal was affixed on them and specimen seal panchnama thereof was prepared, no document regarding the same is available on record. There is also no entry in the Malkhana Register that the sample packets marked as A1 and A2 were deposited in the Malkhana and the same were taken out from the Malkhana itself and sent to the FSL for examination. This creates a doubt whether actually the sample packets A1 and A2 were deposited in the Malkhana and the sample packets A1 and A2 were taken out from the Malkhana and sent to the FSL or the sample packets marked as A1 and A2 were sent to the FSL from somewhere else. 10. As per the prosecution story, total 100 kgs. Ganja was found in total 100 packets. The mixing (samras) panchnama (Ex.P3) shows that the entire Ganja kept in 100 packets was mixed and out of that mixed Ganja, as stated by PW-12 Investigating Officer K.B. Dwivedi, 2 sample packets A1 and A2 were prepared. 11. In Bal Mukund (supra), the Supreme Court, while referring to Standing Order No. 1/88 dated 15.3.1988, held as follows: “36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction 1/88, which had been issued under the Act, lays down the procedure for taking samples. 11. In Bal Mukund (supra), the Supreme Court, while referring to Standing Order No. 1/88 dated 15.3.1988, held as follows: “36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW-7 had taken samples of 25 gm each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law.” 12. Dealing with the issue, High Court of Delhi in Amani Fidel Chris (supra) observed and held as under: “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. The relevant paras of the Standing Order care reproduced as under: “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 seizure of more than one package/container. 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 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.” (Emphasis added) 14. Pari materia with Standing Order 1/88 is the 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) provides for general procedure for sampling, storage and reads as under: “SECTION II - GENERAL PROCEDURE FOR SAMPLING, STORAGE ETC. 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 witness (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. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witness (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 cases of opium, ganja and charas (hasish) 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 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 content 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 10 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 (in duplicate) may be drawn. 2.6 Whereafter 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 will be necessary and no sample need to be drawn. 2.7 If such remainders are 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 a reminder package/container. 2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample are in equal quantity is taken from a package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample are in equal quantity is taken from a 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 heat sealed 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 bear the S. No. of the packages/containers 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 which should also be sealed and marked ‘secret-drug sample/Test memo’ is to be sent to the chemical laboratory concerned. 3.0 The Seizing officers of the Central Government Departments, viz. Customs, Central Excise, Central Bureau of Narcotics, Narcotics Control Bureau, Directorate of Revenue Intelligence etc. should dispatch samples of the seized drugs to one of the Laboratories of the Central Revenues Control Laboratory nearest to their office depending upon the availability of test facilities. The other Central Agencies like BSF, CBI and other Central Police Organisations may send such sample 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. 3.1 After sampling, detailed inventory of such packages/containers shall be prepared for being enclosed to the panchanama. Original wrappers shall also be preserved for evidentiary purposes.” (Emphasis added) 16. A combined reading of paras of the Standing Orders would show that where more than one container/package is found, the respondent is required to draw a sample from each of the individual container/package and test each of the sample with the ‘field testing kit’. It is further provided that if the container/packages are identical in shape, size and weight then lots of 10 or 40 containers/packages may be prepared and thereafter representative samples from each container/package in a particular lot are to be drawn, mixed and sent for testing. 19. It is further provided that if the container/packages are identical in shape, size and weight then lots of 10 or 40 containers/packages may be prepared and thereafter representative samples from each container/package in a particular lot are to be drawn, mixed and sent for testing. 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.” 13. In the light of above, on examination of the facts of the instant case, it is clear that the prosecution had first mixed the entire contraband Ganja kept in 100 packets and thereafter out of that mixed substance they prepared 2 sample packets A1 and A2 each containing 100 grams Ganja. The prosecution has not prepared duplicate sample packets from each of the recovered packets as contained in Standing Order No. 1/88 dated 15.3.1988 issued by the Narcotics Control Bureau and Standing Order No. 1/89 dated 13.6.1989 issued by the Department of Revenue, Ministry of Finance, Government of India. 14. The last contention raised by Learned Counsel for the Appellants was that the provisions of Section 52A of the NDPS Act have also not been duly complied with. Referring to the judgment of the Supreme Court in Union of India vs. Mohanlal, (2016) 3 SCC 379 , in the case of Simarnjit Singh (supra) it was observed by the Supreme Court as under: “8. In paragraphs 15 to 17 of the decision of this Court in Union of India vs. Mohanlal, (2016) 3 SCC 379 , it was held thus: “15. It is manifest from Section 52-A(2) include (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. 16. Sub-Section (3) of Section 52-A 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 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.” 15. In the light of above observation of the Supreme Court, on examination of the facts of the instant case, it is clear that though as per the statement of PW-10 Atul Vishwakarma on 5.11.2015 in compliance of the provisions of Section 52A of the NDPS Act he prepared the inventory, he also prepared the sample packets. However, the said inventory as well as the certificate prepared by this witness have not been submitted by the prosecution before the Trial Court for the reasons best known to them. PW-10 Atul Vishwakarma in paragraph 8 of his cross-examination admitted the fact that he also did not put his signature in the inventory report and the certificate. According to the case of prosecution, the contraband Ganja was seized on 30.8.2015 and was deposited in the Malkhana on 30.8.2015 itself and the inventory was made by PW-10 Atul Vishwakarma on 5.11.2015, i.e. after more than 2 months from the seizure. According to the case of prosecution, the contraband Ganja was seized on 30.8.2015 and was deposited in the Malkhana on 30.8.2015 itself and the inventory was made by PW-10 Atul Vishwakarma on 5.11.2015, i.e. after more than 2 months from the seizure. In compliance of the provisions of Section 52A of the NDPS act why the inventory report was not prepared immediately after the seizure has not been explained by the prosecution. The prosecution has also not produced any document to show that any application was made to PW-10 Atul Vishwakarma for drawing the samples under his supervision. 16. Considering the entire evidence, as discussed above, it is established in the instant case that the prosecution has not complied with the provisions of Section 55 of the NDPS Act. There is also no evidence on record to show that at the time of seizure any sample packet marked as A1 and A2 were prepared and any seal panchnama was prepared. The prosecution has also failed to establish that any article marked as A1 and A2 were deposited in the Malkhana and thereafter the same were taken out from the Malkhana and sent to the FSL for examination. It is also established that Standing Orders No. 1/88 and 1/89 have also not been followed. The provisions of Section 52A of the NDPS Act have also not been duly followed by the prosecution. Considering the entire evidence available on record, as discussed above, I am of the view that the prosecution has failed to prove its case beyond reasonable doubt against the Appellants and the Appellants are entitled to get benefit of doubt. 17. In the result, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellants are acquitted of the charge framed against them.