Ramesh Kumar Saroya vs State Of Chhattisgarh
2022 Latest Caselaw 7262 Chatt

         HIGH COURT OF CHHATTISGARH, BILASPUR
                           CRA No. 1345 of 2022

 Ramesh Kumar Saroya S/o Balwant Singh Saroya, Aged About 29 Years R/o
  Ashok Vihar 03 Gali No. B-6 Gurgaon, (Delhi) Permanent R/o Vilalge
  Kharkapurniya Tahsil And Thana Barwala, Post Hisar (Haryana).
                                                                        ---- Appellant
                                   Versus

 State Of Chhattisgarh Through Station House Officer, Police Station Kondagoan,
  District Kondagaon Chhattisgarh.
                                                                  ---- Respondent

03.12.202 2 Mr. Vikash Pradhan, Advocate for the appellant.

Mr. Abhyunnati Singh, Panel Lawyer for the State.

Heard on application under Section 389 CrPC for suspension of sentence and grant of bail.

By the impugned judgment dated 06.08.2022, passed by Special Judge (NDPS Act) Kondagaon, District Kondabaon (CG) in Special Session Criminal Case No. 20/2020, the appellant 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 appellant 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, Investigating Officer in his examination-in-chief at paragraph 07 has stated before the Judicial Magistrate First Class that he has mixed the seized contraband, thereafter, two samples 50-50 gram have been collected, which are marked as X-1 and X-2. 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 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 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 has already undergone of jail imprisonment of 2 years and 6 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 149.390 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 undergone of jail imprisonment of 2 years and 6 months out of 10 years maximum jail sentence awarded to him 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 appellant shall remain suspended during the pendency of this appeal and he shall be released on bail on 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 his appearance before the Registry of this Court on 10.01.2023. He 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