Chattisgarh High Court
Gopal Sao vs State Of Chhattisgarh on 18 January, 2023
Page 1 of 5
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
Cr.A. No. 1117 of 2022
Gopal Sao S/o Karan Singh Sao Aged About 45 Years R/o Village Aamapali, Police
Station Basna, District Mahasamund (C.G.)
---- Appellant
(In Jail)
Versus
State Of Chhattisgarh, Through The Police Station Sarsiva, District Balodabazar
Bhatapara Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh (C.G.)
---Respondent
18.01.2023 Shri Sanjay Agrawal, counsel for the appellant.
Ms. Ishwari Ghritlahre, P.L. for the State/respondent.
Heard on I.A. No.01/2022 which is an application for suspension
of sentence and grant of bail to the appellant.
By virtue of the impugned judgment of conviction and order of
sentence dated 14/06/2022 passed by the Special Judge (N.D.P.S. Act),
Balodabazar, District- Balodabazar (C.G.) in Session Trial No. 285/2017, as
under:-
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 Psychotropic 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 12 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 as evident from Ex. P/22. This vital aspect has been ignored
by the trial Court while convicting the appellants. He would further submit
that the Investigating Officer (PW-07) in has stated that 12.5 Kg. of
Contraband Ganja has been seized for the possession of the appellant
which is marked as Article - 01 to A-12, he prepared two samples packets
100-100 gm which is marked as Article - 4 and 8, which is sent for chemical
test to Forensic Science Laboratory (FSL), Raipur.
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 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 have already undergone more than 18 months
imprisonment 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 as per Section
37 of NDPS Act, no person accused of an offence punishable for offence
under Sections 19, 24 or 27 A of NDPS and also for offence involving
commercial quantity shall not be released.
Learned State counsel while opposing the bail application would
submit that from the possession of the appellant 12.50 Kg contraband ganja
was seized. 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 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 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 have already undergone the jail sentence i.e. 18 months out of
07 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 this
application.
Accordingly, the application for suspension of sentence and
grant of bail 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/- with one surety of the like sum to the satisfaction of
the concerned trial Court for his appearance before Registry of this Court on
16th March, 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 has been observed by this Court that on various cases, the
mandatory provisions of Standing Order No. 1/89 issued by the Government
of India, has not been complied with, therefore, it is against the direction
issued by Hon'ble the Supreme Court, as such, the Director General of
Police, Government of Chhattisgarh is directed to take cognizance in the
matter and issue appropriate direction to the concerned subordinate officers
for compliance of the mandatory provisions of the NDPS Act including
Standing Order No. 1/89 issued by the Government of India in its letter and
spirit.
List this appeal for final hearing in its due course.
Sd/-/-/-
(Narendra Kumar Vyas)
Judge
Ashsih
