Chattisgarh High Court
Arun Singh vs State Of Chhattisgarh on 2 December, 2022
Page 1 of 5
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
CRA No. 11 of 2022
1. Arun Singh son of Madan Singh, aged about 20 years, Caste- Rajput, resident of
Gotahar, Police Station- Shivnagar, District- Rohtas (Bihar).
2. Ravikumar Yadav son of Gulab Chand Singh, aged about 24 years, Caste-Ahir,
resident of Don, Police Station-Nokha, District- Rohtas (Bihar).
---- Appellants
Versus
State of Chhattisgarh, Through the Station House Officer, Police Station-Duldula,
District-Jashpur (C.G.).
---Respondent
02.12.2022 Mr. Sanjeev Kumar Sahu, counsel for the appellants.
Ms. Ishwari Ghritlahre, for the State.
Heard on application for suspension of sentence and grant of bail to the
appellants.
By the impugned judgment dated 21.12.2021, passed by the learned
Special Judge, NDPS Act 1985, Jashpur, District- Jashpur (C.G.) in Special
Criminal Case (NDPS Act 1985) No. 01/2020, the appellant stands convicted,
as under:-
Conviction Sentence
U/s 20(B)(C) of the : R.I. for 10 years to each of the appellants
NDPS Act, 1985. and fine of Rs. 1,00,000/- each in default of
payment of fine additional R.I. for one year.
Learned counsel for the appellants would submit that the trial Court
without appreciating the Standing Order No. 1/89 dated 13th June, 1989 which
has been framed by Government of India in exercise of powers conferred by
sub-section (1) of Section 52A of the NDPS Act, 1985 with regard to disposal
of seized Narcotics Drug Psychiatric substance has convicted the appellants.
Learned counsel for the appellants has drawn the attention of this Court
towards section 2 of the Standing Order which deals with the general
procedure for sampling, storage, etc. He would further submit that as per
Standing Order, Clause 2.4, in 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 the case of seizure of
more than one package/container. In the present case, there are 15 packets
of contraband article ganja seized from the possession of one appellant
namely Ravikumar Yadav and 14 packets from the another appellant namely
Arun Singh as reflected from identification panchnama(Ex. P/10 & P/11
respectively), therefore, the prosecution should have taken sample in
duplicate from each packages whereas in the present case after mixing the
entire contraband ganja, they have prepared only two samples of 100-100
grams from both the appellants as evident from Ex. P/15 & P/16. This vital
aspect has been ignored by the trial Court while convicting the appellant. He
would further submit that the Investigating Officer- Jeevan Kumar Jangde
(PW-07) in his statement recorded before the Court at paragraph 8 has stated
that after inventory, he prepared two samples plackets i.e. P/15 & P/16,
which has been sent for chemical test to Kshtrik Nayalayik Vidhi Vigyan
Prayogshala, Ambikapur. The memo of Superintendent of Police is Ex. P/57,
& report of FSL is Ex. P/60 From perusal of Ex. P/15 & P/16, it is quite vivid
that the contraband article kept in 14 and 15 packages in respect of Arun
Singh and Ravikumar Yadav respectively have been mixed, and after
samrash and out of samrash, two samples Ex. P21 & P/22 of 100-100 grams
has been prepared
In support of his submission, he would further draw attention of this
Court towards the judgment passed by Hon'ble the Supreme Court in the
case of Union of India Vs. Bal Mukund and others reported in (2009) 12
SCC 161. He would further submit that again Hon'ble the Supreme Court in
the case of Union of India Vs. Mohanlal & another reported in (2016) 3
SCC 379, has examined provisions of Section 52-A & 55 of the NDPS Act,
handling and disposal of seized narcotic drugs and psychotropic substance
and has also considered the Standing Order No. 1/89 to ensure proper
security against theft, pilferage and replacement of seized drugs. Learned
counsel for the appellants would further submit that the Standing Order No.
1/89 has again come up for consideration before High Court of Delhi in the
case of Amani Fidel Chris Vs. Narcotics Control Bureau [CRLA No. 1027
of 2015 (Decided on 13.03.2020)], wherein the Division Bench of Delhi High
Court has acquitted the accused on account of non-compliance of mandatory
provisions of Standing Order No. 1/89. Against that order, Special Leave to
Appeal (Crl.) No. 5088 of 2020 has been filed before the Hon'ble Supreme
Court which has also been dismissed by Hon'ble the Supreme Court on
10.02.2021. Learned counsel for the appellants would submit that in identical
situation, Division Bench of this Court in Criminal Appeal No. 1616/2018 has
granted bail to the appellants vide its order dated 24.08.2021, therefore,
suspension of sentence and grant of bail to the appellants may be considered
and the appellants may be released on bail. Lastly, he would submit that the
appellants have already undergone about 3 years and 4 months
imprisonment and that the appeal is of the year 2021, final hearing of the
appeal will take some time, therefore, the appellants may be enlarged on bail.
Learned State counsel while opposing the bail application would submit
that from the possession of the appellants total 145kg,200g contraband ganja
was seized which is more than the commercial quantity. He would further
submit that Standing Order No. 1/89 is not mandatory in nature and its
discretionary and non-compliance of the Standing Order does not vitiate the
trial, since the appellants have been convicted for the serious offence of
NDPS Act, therefore, they are not entitled to be released on bail.
I have heard learned counsel for the parties and perused the entire
record carefully.
Having considered the facts and circumstances of the case the High
Court of Delhi in the case of Amani Fidel Chris vs. Narcotics Control
Bureau in CRL Appeal No. 1027/2015 decided on 13.03.2020, considered
the Standing Order 1/88 which is Pari materia with Standing Order 1/89 and
has held in paragraph-17 of its judgment which reads as under :-
"Mixing of the contents of container/package (in one lot) and
then drawing the representative samples is not permissible
under the Standing Orders and rightly so since such a
sample would cease to be a representative sample of the
corresponding container/package."
The High Court of Delhi has acquitted the accused in that case. Against
that order, SLP was preferred before the Hon'ble Supreme Court which was
also dismissed on 10.02.2021.
Considering the vital aspect of non compliance of mandatory provisions
of Standing Order No. 1/89, the trial Court has convicted the appellants,
considering the order passed by the Division Bench of this Court in CRA No.
1616 of 2019 on 24.08.2021 and also considering the fact that the appellants
have already undergone the jail sentence i.e. more than 3 years and 4
months out of 10 years maximum jail sentence awarded to them and also
considering the fact that the appeal is of the year 2021 and final hearing of
the appeal will likely to take some time for its disposal, therefore, I am inclined
to allow this application.
Accordingly, the application for suspension of sentence and grant of
bail is allowed and it is directed that the substantive jail sentence imposed
upon the appellants shall remain suspended during pendency of this appeal
and they shall be released on bail on furnishing a personal bond in sum of Rs.
1,00,000/-each along with two local sureties of the like sum to the satisfaction
of the concerned trial Court for their appearance before Registry of this Court
on 7th January, 2023. They shall thereafter continue to appear before the
Registry of this Court on all such subsequent dates as are given to them by
the Registry of this Court till the disposal of this appeal.
List this appeal for final hearing in due course.
Sd/-
(Narendra Kumar Vyas)
Judge
amita
