Vipin Singh vs State Of Chhattisgarh
2022 Latest Caselaw 6977 Chatt

Citation : 2022 Latest Caselaw 6977 Chatt
Judgement Date : 21 November, 2022

Chattisgarh High Court

Vipin Singh vs State Of Chhattisgarh on 21 November, 2022

         HIGH COURT OF CHHATTISGARH, BILASPUR
                          CRA No. 659 of 2022
 Vijay Kumar Harijan S/o Kamalnath Verma, Aged About 28 Years R/o Village
  Pachama Post And Tahsil Tyothar, P.S. Sohagi, District Riwa (Uttar Pradesh)
                                                                  ---- Appellant
                                  Versus
 State Of Chhattisgarh Through Station House Officer, Police Station
  Kondagaon, District Kondagaon (C.G.)
                                                              ---- Respondent

CRA No. 603 of 2022  Vipin Singh S/o Mahendra Singh Aged About 21 Years R/o Village Khatgia Jasra, Post Jasra, Tehsil Bara, Police - Station Dhurpur, Allahabad (Now Prayagraj), Uttar Pradesh

---- Appellant Versus  State Of Chhattisgarh Through - District Magistrate, Kondagaon, District Kondagaon, Chhattisgarh

---- Respondent CRA No. 997 of 2022  Krishna Chandra Vishwakarma S/o Ramesh Chandra Vishwakarma Aged About 21 Years R/o Near Jasara Railway Crossing, Jasara Bazar, Tahsil Bara, Police Station Dhurpur, District Allahaband (Now Prayagraj), District : Allahabad, Uttar Pradesh

---- Appellant Versus  State Of Chhattisgarh Through The Police Station Kondagaon, District : Kondagaon, Chhattisgarh

---- Respondent 21/11/2022 Mr. Mahendra Kumar Dubey, Ms. Laxmeen Tondey, Mr.

Shashi Bhushan Kushwaha, Mr. Pradeep Kumar Singh,

Advocates for the respective appellants.

Mr. R.M. Solapurkar, Government Advocate for the

State.

Heard on application for suspension of sentence and grant of bail to the appellants.

By the impugned judgment dated 17.03.2022 passed by Special Judge (NDPS Act) Kondagaon, District Kondagaon (CG) in Special Sessions Criminal Case (NDPS Act 1985) No. 11/2020, 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    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. Whereas as per the prosecution witness PW/10 Abhiram Meshram, Assistant Sub-inspector has stated in paragraph 16 that the contraband was seized in 24 packets and they have mixed, out of which, 50-50 gram two samples have been taken which were marked as X1 and X2 and rest of the materials were kept in bag and after weighing it came to 99.590 kg. The Samras and Sample Panchnama is marked as Ex.P/53. 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 appellants have already undergone of jail imprisonment of about 3 years 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.

On the other hand learned State counsel opposes the suspension of sentence and grant of bail contended that 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 therepresentative 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."

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 appellants have already undergone the jail sentence for about 3 years and the maximum jail sentence awarded to them is 10 years 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 for suspension of sentence are allowed and it is directed that the substantive jail sentence imposed upon the appellants shall remain suspended during the pendency of these appeals 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 15.12.2022. They shall thereafter continue to appear before the Registry of this Court on all such subsequent dates are given to them by the Registry of this Court till the disposal of the appeals.