Chattisgarh High Court
Satpal vs State Of Chhattisgarh on 17 November, 2022
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1444 of 2021
1. Satpal S/o Balchand, Aged about 28 years, resident of House No. 840 Ward No.
07, Sanjay Enclave Part -1, Sector 22, District Faridabad (Haryana)
1. Hemraj S/o Shyamlal, Aged about 23 Years, R/o Village Ghaudi (Tudhera), Thana
Palwal, District Palwal (Haryana)
2. Anil S/o Kishanchand, Aged about 23 Years, R/o Village Chandhar, Thana- Palwal
District -Palwal (Haryana)
---- Appellants
Versus
State of Chhattisgarh Through Station House Officer, Police Station Pharasgaon,
District Kondagaon (Chhattisgarh)
---- Respondent
17/11/2022 Mr. Vikash Pradhan, Advocate for the appellants.
Mr. R.S. Deo, PL for the State.
Heard on application (I.A. No. 01/2021) under Section
389 CrPC for suspension of sentence and grant of bail to the
appellants.
By the impugned judgment dated 24.09.2021, passed
by Special Judge (NDPS Act) Kondagaon, District
Kondagaon (CG) in Special Sessions Criminal Case No.
34/2018, 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
NDPS Act, 1985.
Rs. 1,00,000/- in default of
payment of fine 1 year
additional RI to all the
appellants.
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 65 containers as reflected from
Ex.P-11 identification panchanan of contraband ganja,
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 taken
only 25 grams of sample as evident from Ex.P-45. This vital
aspect has been ignored by the trial Court while convicting
the appellants. Hewould further submit that Tahsildar (PW-
7) in his deposition has categorically stated that after doing
sumras i.e. mixing of the entire material, samples have
been taken from seized articles and sent the same for
forensic examination of the substance thereafter, he put his
signature on it. 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 stence and grant of bail of the appellants
may be considered and the appellants be released on bail.
Lastly, he would submit that the appellants have already
undergone of jail imprisonment i.e. about 4 years and 10
months 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.
The State has filed the reply to the application for
suspension of sentence and grant of bail wherein they have
contended that as per Section 37 of NDPS Act, no person
accused of an offence punishable for offence u/s 19, 24 or
27 A of NDPS and also for offence involving commercial
quantity shall not be released.
Learned State counsel while opposing the bail
application would submit that from the possession of the
appellants 273.222 KG contraband ganj 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 4 years and 10 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 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 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 05.01.2023. They shall
thereafter continue to appear before the Registry of this
Court on all such subsequent dates are 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
santosh
