[2023:RJ-JD:33597] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1070/2023 In S.B. Criminal Appeal No.1746/2023 Bheru Lal S/o Shankar Lal, Aged About 44 Years, Khermaliya, P.s. Chhoti Sadri, Dist. Pratapgarh. (At Present Lodged At Dist. Jail, Chittorgarh).
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Shoba Prabhakar
For Respondent(s) : Mr. A. R. Choudhary, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
05/10/2023
1. The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 28.07.2023 passed by the learned Special Judge, NDPS Act Cases no.2, Chittorgarh in Sessions Case No.141/2021 whereby he was convicted under Section 8/18(B) of the NDPS Act and sentenced to suffer 14 years rigorous imprisonment along with a fine of Rs.2,00,000/- and in default to further undergo two years' rigorous imprisonment.
2. It is contended on behalf of the applicant that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and thus, reached at an erroneous (Downloaded on 12/11/2023 at 07:00:39 AM) [2023:RJ-JD:33597] (2 of 6) [SOSA-1070/2023] conclusion of guilt, therefore, the same is required to be appreciated again by this court being the first appellate Court. There are several flaws and laches in the case of the prosecution. He submits that the contraband was recovered on 19.04.2021 and the samples were taken on that same day, however, the samples were sent for FSL on 25.06.2021. He submits that the seizing officer had been informed about the presence of narcotic substance in the bag of the petitioner before he left to conduct search and seizure, yet the seizing officer did not relay the above- mentioned information to the senior officers before proceeding further which is mandatory under Section 42 of NDPS Act and thus, the entire process of recovery stands vitiated on this count because of non-compliance of Section 42 of NDPS Act.
3. Per contra, learned Public Prosecutor has vehemently opposed the prayer made on behalf of the learned counsel for the applicant and submits that the matter pertains to recovery huge quantity of contraband and the judgment of conviction passed by learned Court below does not warrant any interference. The impediment contained under Sections 32-A and 37 of NDPS Act will be attracted in the factual situation of the present case.
4. Heard and perused the material available on record as well as gone through the statutory provisions applicable in the matter.
5. It is an admitted position that no compliance of Section 42(2)of NDPS Act was made in this present case as the Seizing Officer candidly admitted in his cross-examination that no information under section 42(2) was supplied to higher officers (Downloaded on 12/11/2023 at 07:00:39 AM) [2023:RJ-JD:33597] (3 of 6) [SOSA-1070/2023] before proceeding for the search and seizure of contraband. There remains no question to moot about the fact that there was previous information with the seizing officer regarding storage of illegal substance defined as contraband as per the provisions of NDPS Act, thus, the provision envisaged under Section 42 of NDPS Act would squarely apply in this case. The prosecution has utterly failed to establish the fact that the mandatory provisions were complied with since it is admitted fact that the information was not supplied to the superior officer according to Section 42(2) of NDPS Act.
6. At the time of drawing of samples, a sample weighing 30 grams was drawn from each of the bags and sent for FSL, however, a perusal of the FSL Report dated 18.01.2022 (Exhibit P-
67) reveals that the weight of each of the samples as mentioned under the Description of Exhibits was more than 30 grams which places a serious doubt over the case of the prosecution. This fact coupled with the fact that the recovery was effected on 19.04.2021 and after that the next entry in the Register is of 25.06.2021 when the samples were sent for FSL and there is no information or update as to what transpired over the span of these two months after collection of samples deeply impairs the genuineness of the allegations and if the submission of the learned counsel or the petitioner regarding previous enmity of the seizing officer with the petitioner is taken unto account, then it cannot be said with certainty that the case of the prosecution is based on true allegations and there is no mala fide on part of the investigating agency.
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7. In Vijaysinh Chandubha Jadeja Vs. State of Gujarat reported in AIR 2011 SC 77, the Hon'ble Apex court indicated that the failure to comply with the provisions of NDPS Act would render the recovery of illicit articles ineffective and vitiate the conviction. The relevant part of the judgment is as follows:-
"Under Section 42 of the NDPS Act, the empowered officer can enter, search, seize and arrest even without warrant or authorisation, if he has reason to believe from his personal knowledge or information taken down in writing, that an offence under Chapter IV of the said Act has been committed. Under proviso to Sub-section (1), if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief and send the same to his immediate official superior in terms of Sub-section (2) of the Section."
22.In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of as afeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under Sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."(Downloaded on 12/11/2023 at 07:00:39 AM)
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8. As per the mandate of law, if the officer has prior information regarding breach of the provisions of NDPS Act, he is under a legal obligation to note down the information and before proceeding to conduct search and seizure, he has to send a report to the superior officers. It is well settled legal position of law that the provision of Sections 42 of the NDPS Act is required to be complied with mandatorily as propounded in the case of Vijaysinh Chandubha Jadeja (supra).
9. Considering the submissions of learned counsel for the parties and looking to the totality of facts and circumstances of the case, and the fact that the hearing of appeal is likely to take further more time and considering the overall submissions while refraining from passing any comments on the niceties of the matter and the defects of the prosecution as the same may put an adverse effect on hearing of the appeal, this court is of the opinion that it is a fit case for suspending the sentence awarded to the accused-appellant.
10. Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the impugned order of sentence dated 28.07.2023 passed by learned Special Judge, NDPS Act Cases no.2, Chittorgarh in Sessions Case No.141/2021 against the appellant-applicant Bheru Lal S/o Shankar Lal shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail provided he executes a personal bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 09.11.2023 and (Downloaded on 12/11/2023 at 07:00:39 AM) [2023:RJ-JD:33597] (6 of 6) [SOSA-1070/2023] whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-
(1) That he will appear before the trial Court in the month of January of every year till the appeal is decided.
(2) That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.
(3) Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court.
11. The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused- applicant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.
(FARJAND ALI),J 41-Mamta/-
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