Chattisgarh High Court

Ramiz Raja vs State Of Chhattisgarh on 2 February, 2023

          HIGH COURT OF CHHATTISGARH, BILASPUR
                               Order Sheet
                            CRA No. 632 of 2022
• Ramiz Raja S/o Sheikh Kasim Aged About 31 Years R/o Renuka, Kirana, District-
  Nagpur, Maharashtra.                                       ---- Appellant.
                                   Versus
• State of Chhattisgarh Through The Police Station Nagarnar, District- Bastar,
  Chhattisgarh                                         ---- Respondent

2-2-2023 Mr. Swajeet Singh Ubeja, counsel for the appellant.

Ms. Abhyunnati Singh, PL for the State.

Heard on I.A. No. 01/2022 which is an application filed under Section 389 CrPC for suspension of sentence and grant of bail to the appellant.

By the impugned judgment dated 18-2-2022 passed by Sessions Judge (Special Judge) (NDPS Act) Jagdalpur (CG) in Special Criminal Case No. 40 of 2020, the appellant stands convicted under Section 20(B)(ii)(c) of the NDPS Act, 1985 and sentenced to undergo RI for 10 years and fine of Rs. 1,00,000/- in default of payment of fine to undergo additional R.I. for one year.

As per prosecution story, on 22-6-2020 the Police through informant received information that the present appellant along with other co-accused are traveling in a car bearing registration No. MH-38-X-0801 and carrying contraband Ganja hidden in the rear seat. On such information being received, Police party made a search and on search they found that the appellant was carrying 33 packets of ganja weighing 109 kgs which was recovered

from the possession of the appellant and other co-accused.

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 appellants 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 33 packets as reflected from Ex.P-20 which is an identification panchanama 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 50 grams of sample as evident from which has been marked as A-1 & A-2 vide Ex.P-32. This vital aspect has been ignored by the trial Court while convicting the appellant. He would further submit that after mixing of the entire material, samples have been taken from seized articles and sent the same for forensic examination of the substance. 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 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, in CRL.A 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 appellant would further 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 appellant be released on bail. Lastly, he would submit that the appellant has already undergone of jail imprisonment more than 2 ½ years 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.

The State has filed the reply to the application for suspension of sentence and grant of bail wherein they have contended that the case of the prosecution and conviction is based on the direct evidence. The prosecution has proved

its case beyond any reasonable doubt and therefore, there is no prima facie ground for suspension of sentence and grant of bail and the the instant bail application deserves to be rejected.

Learned State counsel while opposing the bail application would submit that from the possession of the appellants 109 kg of 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, he 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 Cr.A. No. 1616 of 2019 on 24/08/2021 and also considering the fact that the appellant have already undergone the jail sentence more than 2 ½ years 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 his 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 13th March, 2023. He shall thereafter continue to appear before the Registry of this Court on all such subsequent dates are are given to him by the Registry of this Court till the disposal of this appeal. It is made clear that the date given by the trial court for appearance of the accused appellant should not have interval of more than 90 days from the previous date.