Chattisgarh High Court
Smt. Sushma Chandra vs State Of Chhattisgarh on 22 November, 2022
Page 1 of 5
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
CRA No. 1086 of 2022
Smt. Sushma Chandra W/o Ashok Chandra Aged About 40 Years R/o Sakin Tikhti
Sadak Para, P.S. Marwahi, District : Bilaspur, Chhattisgarh
---- Appellant
Versus
State of Chhattisgarh Through - P.S. Ramanujnagar, District - Surajpur (C.G.)
---- Respondent
22.11.2022 Mr. Shakti Raj Sinha, counsel for the appellant.
Ms. Ishwari Dhritlahre, Panel Lawyer for the State/respondent.
Heard on I.A.No. 1 of 2022 which is an application for suspension of
sentence and grant of bail to the appellant.
By the impugned judgment dated 30-6-2022 passed by the learned
Special Judge (under NDPS Act), Surajpur, District Surajpur (C.G.) in
Special Sessions Trial No. 7 of 2019, the appellant stands convicted as
under:-
Conviction Sentence
U/s 20(b)(ii)(C) of the : R.I. for four years and fine of Rs. 20,000/-
NDPS Act, 1985. in default of payment of fine to undergo
additional R.I for one year.
Learned counsel for the appellant would submit that the trial Court
without appreciating the Standing Order No. 1/89 dated 13 th 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 appellant. Learned counsel for the appellant 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 as reflected
from identification panchnama of contraband article 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 prepared only two samples of 100-100 grams. This vital aspect has
been ignored by the trial Court while convicting the appellant. He would
further submit that the the Investigating Officer (PW/7) who was examined
before the trial court has stated in examination-in-chief that he seized
two bags from present appellant and other co-accused; one bag consists
of eight packets and another bag consists of seven packets total 15
packets of contraband Ganja and after weighing it was found 14 kgs and
990 grams and after mixing it, he has prepared two samples of 100-100
grams each from material collected and sent the same for FSL for
chemical examination which is in violation of Standing Order No.1/89
issued by the Government of India under Section 52-A of the Act, 1985. He
would further submit that the trial court ought to have considered that the
search and seizure witnesses of this case have turned hostile and not
supported the prosecution. He would further submit that mandatory
provisions of Sections 42 to 57 of the Act, have not been complied with by
the prosecution.
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 appellant 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 appellant may be considered and the appellant may be released on
bail. Lastly, he would submit that the appellant has already undergone of
jail imprisonment i.e. more than 10 months and that the appeal is of the
year 2022, final hearing of the appeal will take some time, therefore, the
appellant may be enlarged on bail.
On the other hand, learned State counsel while opposing the bail
application would submit that from the possession of the appellant and co-
accused 14 kgs and 990 grams 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
appellant has been convicted for the serious offence of NDPS Act,
therefore, she is 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
appellant, 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 has already undergone the jail sentence more than 10
months out of 10 years maximum jail sentence awarded to her and also
considering the fact that the appeal is of the year 2022 and final hearing of
the appeal will likely to take some time for its disposal, therefore, I am
inclined to allow this application.
Accordingly, I.A.No 1 of 2022 is allowed and it is directed that the
substantive jail sentence imposed upon the appellant shall remain
suspended during pendency of this appeal and she shall be released on
bail on her 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 her appearance before Registry of this Court on 5th January
2023. She shall thereafter continue to appear before the Registry of this
Court on all such subsequent dates as are given to her by the Registry of
this Court till the disposal of this appeal.
List this appeal for final hearing in the month of March, 2023.
Sd/-
(Narendra Kumar Vyas)
Judge
Raju
