Chattisgarh High Court
Kedar Nath Tripathi vs State Of Chhattisgarh on 28 November, 2022
Page 1 of 5
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1557 of 2022
Kedar Nath Tripathi S/o Shri Jagdish Prashad Tripathi Aged About 33 Years R/o Village
Bhambhet Police Station- Rajpur, District (Revenue And Civil), District- Chitrakoot,
Uttar Pradesh
---- Appellant
Versus
State of Chhattisgarh Through District Magistrate Raipur, District Raipur, Chhattisgarh
---- Respondent
28.11.2022 Mr. Yogesh Pandey, Advocate for the appellant.
Mr. Ajay Khumrani, PL for the State.
Heard on application (I.A. No. 01/2022) under Section 389 CrPC for
suspension of sentence and grant of bail to the appellant.
By the impugned judgment dated 15.09.2022, passed by Special
Judge (NDPS Act) Raipur, District Raipur (CG) in Special Criminal Case
No. 39/2019, the appellant stands convicted and sentenced as under:-
Conviction Sentence
U/s 20(b)(ii)(B) of the : R.I. for 7 years and fine of Rs. 25,000/- in
NDPS Act, 1985. default of payment of fine, to undergo
additional RI for 2 years.
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 appellant. Learned counsel for the appellant has drawn
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 3 packets of contraband
ganja i.e. 10 Kg, 8 Kg and 2 Kg was seized from the appellant, therefore,
the prosecution should have taken only one sample in duplicate from each
package whereas in the present case after mixing the entire contraband
ganja, they have prepared only one sample of 50 grams as evident from
Ex. P/10. This vital aspect has been ignored by the trial Court while
convicting the appellant. He would further submits that there is clear
violation of sections 42, 50, 55 and 57 of NDPS Act with regard to safe
custody of the seized articles and samples which were sent for chemical
analysis to FSL. He would further submits that the seizure witnesses have
not support the case of the prosecution and turned hostile. He would
further submits that mandatory provisions of the Act, 1985 has not been
complied with by the authorities while convicting the appellant.
In support of their submission, they 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. They 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 counsels for the appellant 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 appellant 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 more than 8 months and 20 days of jail
imprisonment, 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.
Learned State counsel while opposing the bail application would
submit that from the possession of the appellant 20 KGs 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, 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 whereby 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 appellant has already undergone the jail
sentence i.e. more than 8 months and 20 days out of 7 years maximum jail
sentence awarded to him 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 the application for
suspension of sentence and grant of bail to the appellant.
Accordingly, the applications for suspension of sentence and grant of
bail filed by the appellant is allowed and it is directed that the substantive
jail sentence imposed upon the appellant shall remain suspended during
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 like
sum to the satisfaction of the concerned trial Court for his appearance
before Registry of this Court on 19-12-2022. He shall thereafter continue to
appear before the Registry of this Court on all such subsequent dates as
are given to him by the Registry of this Court till the disposal of this appeal.
It is made clear that for appearance of the accused before the
Registry of this Court, the interval between the dates to be given by him
shall not be less than 90 days.
List this appeal for final hearing in the month of March, 2023.
Certified copy as per rules.
Sd/-
(Narendra Kumar Vyas)
Judge
Santosh
