Saradu Harijan vs State Of Chhattisgarh
2023 Latest Caselaw 179 Chatt

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                                                                              NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                          CRA No. 1001 of 2021
Saradu Harijan, S/o Jagbandhu Harijan, Aged About 22 Years, R/o. Village Borgaon
P.S. Kosagumda District Navrangpur (Odisha).
                                                                     ---- Appellant
                                  Versus
State of Chhattisgarh Through The Police Station Nagarnar, District Bastar
Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh
                                                                  ---- Respondent

10.01.2023 Mr. Vikash Pradhan, Advocate for the appellant.

Ms. Abhyunnati Singh, 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 appellant.

By the impugned judgment dated 03.09.2021, passed by Special Judge (NDPS Act) Jagdalpur, District Bastar (CG) in Special Criminal Case No. 26/2020, the appellant stands convicted and sentenced as under:-

Conviction Sentence U/s 20(B)(ii-C) of the : R.I. for 10 years and fine of Rs. NDPS Act, 1985. 1,00,000/- in default of payment of fine, to undergo additional RI for 1 year.

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. 22 Kgs was seized from the appellant, therefore, the prosecution should have taken only two samples in duplicate from each package whereas in the present case after mixing the entire contraband ganja, they have prepared only two sample of 50-50 grams as evident from Ex.P/14. This vital aspect has been ignored by the trial Court while convicting the appellant. He has also stated in his examination-in-chief that all the material contained in 3 packets were mixed and thereafter two samples have been prepared and sent for chemical analysis to FSL. He would further submits that seizure witness has been declared hostile by the prosecution. 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 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 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 2 years and 8 months of jail imprisonment, that the appeal is of the year 2021, 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 22 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, 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 whereby 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 i.e. more than 2 years and also considering the fact that the appeal is of the year 2021 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 application 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 13-02- 2023. 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