Manoj Kumar Yadav vs State Of Chhattisgarh
2023 Latest Caselaw 455 Chatt

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                      HIGH COURT OF CHHATTISGARH, BILASPUR
                                          Order Sheet
                                     CRA No. 1492 of 2021
  1. Tarun Yadav S/o Sadeshwar Yadav Aged About 32 Years R/o Village Raghunathpur, P. S.
     Patthalgaon, District Jashpur Chhattisgarh
  2. Vinod Kumar Yadav S/o Late Budhiram Yadav Aged About 23 Years R/o Dhodhi
     Tikra, P. S. Patthalgaon, District Jashpur Chhattisgarh
  3. Ghyanshyam Banjare S/o Vijaylal Banjare Aged About 22 Years R/o Patthalgaon,
     P. S. Patthalgaon, District Jashpur Chhattisgarh
                                                                                     ---- appellants
                                             Versus
    State Of Chhattisgarh Through Police Station Kondagon District Kondagaon District
     Kondagaon Chhattisgarh
                                                                                   ---- Respondent

CRA No. 67 of 2022  Manoj Kumar Yadav S/o Shri Nidhishwar Yadav Aged About 23 Years R/o Village Bhathudarh, Pathalgaon, Thana Pathalgaon, Civil And Revenue District Jashpur Chhattisgarh

---- appellant Versus  State Of Chhattisgarh Through The District Magistrate, Kondagaon, Civil And Revenue District Kondagaon Chhattisgarh

---- Respondent CRA No. 1508 of 2021  Ghanshyam Banjare S/o Shri Vijay Lal Banjare Aged About 22 Years R/o Village Patthalgaon, Police Station - Patthalgaon, District - Jashpur (Chhattisgarh), District : Jashpur, Chhattisgarh

---- appellant Versus  State Of Chhattisgarh Through Station House Officer, Police Station - Kondagaon, District Kondagaon (Chhattisgarh), District : Kondagaon, Chhattisgarh

---- Respondent

23.01.2023 Mr. H. P. Agrawal, Advocate, Mr. Amit Kumar Chauhan, Advocate and Mr. Sumit Shrivastava, Advocate for the appellants.

Mr. Himanshu Kumar Sharma, Panel Lawyer for the State/respondent. Since all the appeals are arising out of same crime number, therefore, the applications for suspension of sentence and grant of bail to the appellants heard together and are being decided by this common order.

By the impugned judgment dated 21.10.2021, passed by the learned Special Judge, NDPS Act 1985, Kondagaon, District- Kondagaon(C.G.) in Special Criminal Case (NDPS Act 1985) No. 16/2017, and Crime No. 72/2017 the appellants stand convicted and sentenced, as under:-

        Conviction                                 Sentence
 U/s 20(b)II(c) of      the : R.I. for 10 years to each of the appellant and fine

NDPS Act, 1985. of Rs. 1,00,000/-each in default of payment of fine additional R.I. for one year(to each appellant).

Learned counsel for the appellants 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 appellants. Learned counsel for the appellants 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 A39 packets of contraband article ganja seized, 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 50-50 grams and marked as X1 and X2. This vital aspect has been ignored by the trial Court while convicting the appellants.

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. therefore, suspension of sentence and grant of bail to the appellants may be considered and the appellants may be released on bail. Lastly, he would submit that the appellant namely- Tarun Yadav is remained in jail for more than 5 years, appellant- Vinod Yadav is remained in jail for about 3 years and 4 months, appellant- Ghanshyam Banjare is remained in jail for about 2 years and 10 months and Mr. Manoj Kumar Yadav is remained in jail for about 2 years and 10 months and that the appeal is of the year 2021, final hearing of the appeal will take some time, therefore, the appellants 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 appellants 203.890 KG 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 appellants

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.

Considering 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 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 statement of Sub-Inspector- Pramod Kashyap (PW11) wherein he has stated that after samrash, he prepared two samples plackets i.e. X1 & X2. From perusal of records, it is quite vivid that the contraband article kept in A39 packets have been mixed in presence of Mr. Dilesh Yadav Chief Judicial Magistrate and out of samrash, he has prepared two samples of 50-50 grams each and also considering the fact that the appellants Namely Tarun Yadav, Vinod kumar Yadav, Ghyanshyam Banjare and Manoj Kumar yadav have already undergone the jail sentence for about 5 years, 3 years and 4 years and 2 years and 10 months, 2 years and 10 months respectively out of 10 years maximum jail sentence awarded to them 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 this application.

Accordingly, the applications for suspension of sentence and grant of bail are allowed and it is directed that the substantive jail sentence imposed upon the appellants shall remain suspended during pendency of these appeals and they shall be released on bail on furnishing a personal bond in sum of Rs. 1,00,000/- each along with two local sureties of the like sum to the satisfaction of the concerned trial Court for their appearance before Registry of this Court on 16th of February, 2023. They shall thereafter continue to appear before the Registry of this Court on all such subsequent dates as are given to them by the Registry of this Court till the disposal of this appeal.

List this appeal for final hearing in its chronological order.

Sd/-

(Narendra Kumar Vyas) Judge

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