Chattisgarh High Court
Avinash Mandal vs State Of Chhattisgarh on 3 December, 2022
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1152 of 2022
1. Avinash Mandal S/o Amrit Mandal Aged About 27 Years Resident Of
Padamgiri, M.V. 84, Police Station Malkangiri District Malkangiri (Odisha)
2. Prakash Sarkar S/o Ravindra Sarkar Aged About 27 Years Resident Of
Padamgiri, M.V. 84, Police Station Malkangiri, District Malkangiri (Odisha)
---- Appellants
Versus
State Of Chhattisgarh Through The Station House Officer, Police Station, Darbha,
District Bastar (C.G.)
---- Respondent
03.12.202 2 Mr. Mukesh Shrivastava, Advocate for the appellants.
Ms. Abhyunnati Singh, Panel Lawyer for the State.
Heard on application under Section 389 CrPC for
suspension of sentence as well as fine amount.
By the impugned judgment dated 12.07.2022, passed by
Special Judge (NDPS Act) Jagdalpur, District Bastar (CG) in
Special Criminal Case (NDPS Act) No. 15/2018, the
appellants stand convicted and sentenced as under:-
Conviction Sentence
U/s. 20 (B) (ii-C) of the RI for 10 years and fine of Rs.
NDPS Act, 1985.
1,00,000/- in default of
payment of fine 1 year
additional RI
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, PW/13 the
Investigating Officer in his examination-in-chief at paragraph
12 has stated that packet No. 1 contained 10 Kg, packet No.
2 contained 10 kg, packet No. 3 to 15 contained 05-05 Kg,
packet No. 16 to 30 contained 1 Kg each as such total 100
Kg contraband Ganja was seized. In paragraph 18 it has
been mentioned that Assistant Sub-inspector Ramvilash Negi
has done the inventory proceeding of the contraband. He has
mixed the seized contraband, thereafter, sample has been
collected. Document relates to inventory is Ex.P/2 and P/3.
In Ex.P/2 which is order sheet of the Judicial Magistrate First
Class, it has been mentioned that seized 30 packets of
brown colour plastic were brought before the Court which
have been filled up in 6 white and green packets after
measurement it found that it weighted 100 Kg. it has also
been mentioned in the order sheet that when the plastic bag
was opened before the Court it contained 30 different plastic
packets wherein contraband Ganja was kept in sealed
position. In support of his submission, he would further draw
the attention of this Court towards the judgment passed by
the Hon'ble Supreme Court in the case of Union of India vs.
Bal Mukund and others (2009) 12 SCC 161. He would
further submit that again the Hon'ble Supreme Court in the
case Union of India vs. Mohanlal and Another (2016) 3
SCC 379 has examined the provisions of section 52-A and
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, in CRLA No. 1027 of 2015
decided on 13.03.2020 wherein the Divison 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 the Hon'ble
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 of the
appellants may be considered and the appellants be released
on bail. Lastly, he would submit that the appellant No. 1 has
already undergone of jail imprisonment i.e. about 4 years and
10 months and appellant No. 2 has undergone 2 years and 5
months, that the appeal is of the year 2022, 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 100 KG contraband 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,
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 appellant No. 1 has already
undergone jail imprisonment i.e. about 4 years and 10
months and appellant No. 2 has undergone 2 years and 5
months out of 10 years maximum jail sentence awarded to
them and also considering the fact that the appeal is of the
year 2022 and hearing of the appeal will likely to take some
time for its disposal, therefore, I am inclined to allow this
application.
Accordingly, the application is allowed and it is directed
that the substantive jail sentence imposed upon the
appellants as well as fine amount shall remain suspended
during the pendency of this appeal and they shall be released
on bail on each of them furnishing a personal bond in sum of
Rs. 1,00,000/- along with two local sureties each of the like
sum to the satisfaction of the concerned trial Court for their
appearance before the Registry of this Court on 10.01.2023.
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 case for final hearing.
Sd/-
(Narendra Kumar Vyas)
Judge
deshmukh
