JUDGMENT : Sanjay S. Agrawal, J. 1. This appeal has been preferred by the accused under Section 374 (2) of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment of conviction and order of sentence dated 29.07.2021 passed by the Special Judge (N.D.P.S. Act) Mahasamund, District-Mahasamund in Special Session Criminal (N.D.P.S. Act) Case No.H-35/2017, whereby the appellant has been convicted for the offense punishable under Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as the “N.D.P.S. Act”) and sentenced him to rigorous imprisonment for 12 years and fine amount of Rs.1,00,000/-, and in default of payment of fine amount has to go for additional rigorous imprisonment for 1 year. 2. Briefly stated the facts of the case are that on 07.09.2017, the Assistant Sub-Inspector of Crime Branch, Mahasamund, namely, Nawdharam Khandekar has gone to Patewa-Pithoura along with staff members for searching the vehicles and during the search proceedings, a white ‘Tavera Car’ bearing registration no. MP-19-CT-2605, driven by the appellant-Murtuja Ali, came from Pithoura to Patewa and upon search of the said vehicle near toll plaza at village Dank (N.H.-53), 53.350 kg “Ganja” containing in 52 packets was recovered from the backside of it in presence of the witnesses which was kept by him for the purpose of sale. Before searching of the vehicle in question, the appellant was served with a notice (Ex.P-3) under Section 50 of the N.D.P.S. Act informing him about his legal right either to be searched in presence of the Magistrate or any of the gazetted officers, who in turn, has consented to be searched by the said police officials and after the completion of the search proceedings, the alleged contraband article (Ganja) was recovered from the backside of the alleged vehicle. Baramdagi Panchnama (Ex.P-8) was, therefore, prepared wherein, apart from the alleged contraband article, the mobile phone, driving licence and the Adhar Card belonging to the appellant was recovered from him and the seizure memo (Ex.P-14) was, accordingly, made in presence of the witnesses. A few quantity of alleged contraband article was taken from each of the packets and thereupon it was mixed up for its testing in order to ascertain its character where it was detected to be “Ganja”. A few quantity of alleged contraband article was taken from each of the packets and thereupon it was mixed up for its testing in order to ascertain its character where it was detected to be “Ganja”. Thereafter, all the alleged contraband article was mixed up after opening all the packets and that by preparing “Samras Panchnama” vide Ex.P-12, it were kept in 4 gunny bags and, out of which, representative samples in 2 bags, each containing 100 grams of “Ganja”, were made vide Ex.P-15 and sent for its chemical examination and, vide F.S.L. Report (Ex.P-40), it was found to be the alleged contraband article. After completion of the thorough investigation, a final report was submitted against the appellant for the commission of the alleged offence under Section 20 (b) (ii) (C) of the N.D.P.S. Act, which was denied by him. 3. In order to bring home the guilt of the appellant, the prosecution has examined as many as 13 witnesses and has exhibited 40 documents, while none was examined by the appellant in rebuttal. 4. The trial Court after considering the evidence led by the prosecution has convicted the appellant for the offence punishable under Section 20 (b) (ii) (C) of the N.D.P.S. Act and awarded the sentence as mentioned herein-above. 5. Learned counsel appearing for the appellant submits that the attesting witnesses to the alleged seizure memo (Ex.P-14) have turned hostile without supporting the prosecution story, yet the appellant has been held liable mainly on the testimonies of the investigating officer. It is contended further while drawing attention to the Standing Orders bearing no.01/1988 and 01/1989 issued under Section 52-A of the N.D.P.S. Act, that since the individual samples from each of the packets have not been drawn and sent for its chemical examination, therefore, it has caused a serious prejudice to the appellant. The entire proceeding is, therefore, vitiated and based upon it, the conviction as made is liable to be set aside. In support, he placed his reliance upon the decision rendered by the Supreme Court in the matter of Naresh Kumar Alias Nitu Versus State of Himachal Pradesh reported in (2017) 15 SCC 684 . 6. On the other hand, learned counsel appearing for the State/respondent has supported the impugned judgment of conviction and order of sentence as passed by the Court below. 7. 6. On the other hand, learned counsel appearing for the State/respondent has supported the impugned judgment of conviction and order of sentence as passed by the Court below. 7. We have heard learned counsel appearing for the parties and perused the entire record carefully. 8. It appears from perusal of the record that on the fateful day i.e., 07.09.2017, when the concerned police officials were searching the vehicles, the alleged contraband article was found to be recovered from the backside of the vehicle in question “Tavera Car” bearing registration no.MP-19-CT-2605, which was being driven by the appellant-Murtuja Ali. The alleged contraband article was recovered in presence of the two witnesses. It, thus, appears to be a case of sudden recovery and the prosecution has placed its reliance upon these two independent witnesses, namely, Hemant Mirdha (PW-01) and Jageshwar Sahu (PW-02) in whose presence all the proceedings have been done. Both these witnesses have, however, turned hostile without supporting the prosecution story, although they have admitted their signatures in all the documentary evidence, but have explained by saying that since the concerned police officials often used to come in their hotels (Dhaba) for having meal, therefore, the police officials are acquainted with them and as per their request, they have put their signature on all the documentary evidence including the alleged seizure memo marked as Ex.P-14. Since, these witnesses have not supported the prosecution story, therefore, merely on the testimony of the police officials, the conviction of the appellant cannot be made unless and until their testimonies are corroborated by cogent and reliable evidence. 9. At this juncture, the observation made by the Supreme Court in the matter of Naresh Kumar Alias Nitu Vs. State of Himachal Pradesh reported in (2017) 15 SCC 684 is to be seen as that was the case where in case of sudden recovery of contraband article in presence of the independent witnesses, the prosecution has initially placed his reliance, but later on discarded them, therefore, in such factual scenario, it was held that non-examination of those independent witnesses would be the risk of fair trail for the accused. Relevant observation made therein at para-8 reads as under:- “8. In a case of sudden recovery, independent witness may not be available. Relevant observation made therein at para-8 reads as under:- “8. In a case of sudden recovery, independent witness may not be available. But if an independent witness is available, and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient, and place reliance upon police witnesses only. In the stringent nature of the provisions of the Act, the reverse burden of proof, the presumption of culpability under Section 35, and the presumption against the accused under Section 54, any reliance upon Section 114 of the Evidence Act in the facts of the present case, can only be at the risk of a fair trial to the accused. 10. In the instant matter, the said independent witnesses though examined but have not supported the prosecution story and the testimonies of police officials are not found to be corroborated by cogent and reliable evidence, therefore, under such circumstances, the conviction of the appellant based upon their testimonies alone cannot be safe for holding his involvement in connection with the alleged crime. 11. Pertinently to be noted here further that after the recovery of the alleged contraband article (Ganja) from the backside of the vehicle in question, driven by the appellant, it was mixed-up with each other after opening all the alleged 52 packets as evidenced by the “Samras Panchnama” marked as Ex.P-12. It appears further that the two representatives samples of 100 grams each were thereafter drawn from it, however, instead of that, the individual samples from each of the packets should have been drawn for its chemical examination. It, therefore, appears to have been caused a serious prejudice to the appellant as in the instant matter, as reflected from the said “Samras Panchnama” (Ex.P-12)”, all the contraband article was firstly mixed up with each other after opening of all the packets and, thereafter, two representative samples of 100 grams each were drawn and sent for its chemical examination which was, however, not permissible in view of the statutory Standing Orders bearing numbers 01/1988 and 01/1989. 12. 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. 12. 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 are 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. (Emphasis given) (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. (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." 13. 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. 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. 2.4 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. (Emphasis given) 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 color 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. 2.9 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 package(s)/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. 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 Organizations 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." 14. A combined reading of the aforesaid paragraphs 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. Mixing of the contents of container/package (in one lot) and then drawing the representative samples is, therefore, not permissible under the Standing Orders and rightly so as such a sample would cease to be a representative sample of the corresponding container/package. 15. 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. 16. The sanctity of the Standing Order 1/89 came for consideration before the Supreme Court in “Noor Aga v. State of Punjab" reported in (2008) 16 SCC 417 , where the facts before the Court were that 1.4 kg heroin was found concealed in a cardboard container carrying grapes. It was held as under:- "87. 16. The sanctity of the Standing Order 1/89 came for consideration before the Supreme Court in “Noor Aga v. State of Punjab" reported in (2008) 16 SCC 417 , where the facts before the Court were that 1.4 kg heroin was found concealed in a cardboard container carrying grapes. It was held as under:- "87. Perseverance of original wrappers, thus, comes within the purview of the direction issued in terms of Section 3.1 of the Standing Order No. 1 of 1989. Contravention of such guidelines could not be said to be an error which in a case of this nature can conveniently be overlooked by the Court. We are not oblivious of a decision of this Court in “Chief Commercial Manager, South Central Railway, Secunderabad v. G. Ratnam" (2007) 8 SCC 212 relating to disciplinary proceeding, wherein such guidelines were held not necessary to be complied with but therein also this Court stated: (SCC p.222, para 23) 23. In the cases on hand, no proceedings for commission of penal offences were proposed to be lodged against the respondents by the investigating officers. 88. In Moni Shankar v. Union of India (2008) 3 SCC 484 , however, this Court upon noticing G. Ratnam (supra), stated the law thus: 15. It has been noticed in that judgments that Paras 704 and 705 cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. This Court proceeded on the premise that the executive orders do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued. 16. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent official. It was furthermore opined: (Moni Shankar case., SCC p. 493, para 23) "23.....It may be that the said instructions were for compliance of the Vigilance Department, but substantial compliance therewith was necessary, even if the same were not imperative in character. It was furthermore opined: (Moni Shankar case., SCC p. 493, para 23) "23.....It may be that the said instructions were for compliance of the Vigilance Department, but substantial compliance therewith was necessary, even if the same were not imperative in character. A departmental instruction cannot totally be ignored. The Tribunal was entitled to take the same into consideration along with other materials brought on record for the purpose of arriving at a decision as to whether normal rules of natural justice had been complied with or not." 89. Guidelines issued should not only be substantially complied, but also in a case involving penal proceedings, vis-a-vis a departmental proceeding, rigours of such guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefor, it becomes obligatory on the part of the subordinate authorities to comply therewith. 90. Recently, this Court in “State of Kerala v. Kurian Abraham (P) Ltd.” (2008) 3 SCC 582 following the earlier decision of this Court in “Union of India v. Azadi Bachao Andolan" (2004) 10 SCC 1 held that statutory instructions are mandatory in nature. 91. Logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution." (emphasis added) 17. A bare perusal of the aforesaid Standing Orders which have its statutory force on account of its issuance under Section 52-A of the N.D.P.S. Act and in view of the principles laid down by the Supreme Court in the above mentioned judgment would, thus, show that where more than one container/packet is found, the prosecution, in the said eventuality, is required to draw a sample from each of the individual container/packet and each of the sample is to be tested with the “field testing kit”. It, thus, appears that mixing of the contents of container/packet in one lot and then drawing the representatives sample is not permissible under the aforementioned Standing Orders, else it would cease to be a representative sample of the corresponding container/packet. 18. In the instant matter as is revealed from the “Samras Panchnama” (Ex. P-12), 52 packets each containing contraband article (Ganja) was found and without weighing the contents of each individual packet, the same was mixed after opening all the packets and, thereafter, kept the same in 4 plastic bags and then only it was weighed where 53.350 kilogram ganja was found and, out of which, two representative samples of 100 grams each were drawn vide “Sample Specification Panchnama” (Ex.P-15)” and was then sent for its chemical examination which was, however, not permissible by virtue of the procedure provided in paragraph 2.4 of the aforementioned Standing Order no.01/1989. Having failed to follow the statutory procedure made in this regard has certainly caused a serious prejudice to the appellant and, therefore, under such circumstances, his conviction cannot be upheld. 19. Consequently, In view of the aforesaid background, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 29.07.2021 passed by Special Judge (N.D.P.S. Act) Mahasamund, District-Mahasamund in Special Session Criminal (NDPS Act) Case No. H-35/2017, is hereby quashed and the appellant shall be released forthwith, unless he is under the custody in connection with some other case. 20. Compliance of this order be reported forthwith to the registry of this Court.