Madhya Pradesh High Court
Sushil Sharma vs The State Of Madhya Pradesh on 30 May, 2022
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 30th OF MAY, 2022
MISC. CRIMINAL CASE No. 26528 of 2022
Between:-
SUSHIL SHARMA S/O RAMGOVIND SHARMA ,
AGED ABOUT 30 YEARS, VILL SUMAWALI PS
SUMAWALI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANAND SINGH SIKARWAR, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH INCHARGE
POLICE STATION P.S. DEHAT SHEOPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY MS. PADAMSHRI AGARWAL, PANEL LAWYER )
This application coming on for hearing this day, the court passed the
following:
ORDER
This is the first bail application u/S.439 Cr.P.C filed by the applicant
for grant of bail.
Applicant has been arrested on 22.11.2021 by police Station, Dehat,
Distt. Sheopur, in connection with crime No.254/2021 for the offence
punishable under Section 8/20 of the NDPS Act.
As per prosecution story, on 22.11.2021 police Sub-Inspector of
Police Station, Dehat, Sheopur, Hitgopal Yadav in the morning at 6.20 am
got a secret information that near Punjabi School on a canal one Ertiga
vehicle is standing in which three persons were sitting. They are having
illicit cannabis (Ganja) in their possession and they are in search of buyer.
On this information, he along with police force reached the spot along with
necessary articles. SDO(P) was not at headquarters, due to which search
warrant could not be procured. On reaching the spot, they saw one Ertiga
vehicle was standing on the bank of canal. One person was sitting on
driving seat and two persons were sitting behind. The police force
surrounded the vehicle so that no one could escape. All three persons were
apprehended. From backseat three bags were found. Persons sitting in the
vehicle stated their names as applicant/accused Qurban Khan resident of
Morena, accused Salman resident of Morena and Sushil resident of
Sumawali. Their vehicle number was found as MP07 CH 0196. They
were apprised of the provisions of Section 50 of the NDPS Act. Sub-
inspector gave search to the aforesaid persons of himself, his police party
and vehicle. Thereafter, accused persons were searched, from their
possession currency notes, mobile were seized. Thereafter, three bags,
which were kept on the backseat, were taken out. On opening two bags 13
packets each were found and in another bag 12 packets were found. They
were sealed with cello tape. On opening the packet, smell of cannabis was
coming. Article was identified as Ganja. Electric weighing machine was
physically verified. From each bags, packets were took out and articles
kept in all 38 packets were taken out on a Shaul and made homogeneous
(Samras). Out of total 80 kgs of Ganja, two samples of 500 gms each were
taken. Accused persons were arrested. Vehicle was seized. After making
enquiry on the spot, Crime No.254/2021 was registered at police Station,
Dehat Sheopur.
From the side of applicant/accused, it is submitted that on the date of
occurrence of offence alleged contraband has not been seized from the
possession of applicant/accused. Mandatory provision of NDPS Act has
not been followed. Sample was taken after mixing 38 packets kept in three
bags which is violation of mandatory provision of guidelines issued under
NDPS Act. Therefore, he should be released on bail.
F r o m the side of applicant-accused it has been submitted that
investigating agency committed gross negligence during investigation
because before taking sample of each packets, they mixed the contraband
kept in 38 packets. In fact, they had to take sample from each packets. In
support of their contention, learned counsel for applicant-accused has
relied on judgment passed by High Court of Judicature For Rajasthan
At Jodhpur in CrLMB 5643/2019 (Laal Singh Vs. State of Rajasthan)
on 16.05.2019 in which the same facts were taken into consideration. In
that case SHO Police Station Arnod District Pratapgarh seized 1264 kg and
800 gm poppy husk contained in 57 bags. Seizure Officer first mixed all the
poppy husk contained in 57 bags, on a tarpaulin and thereafter took two
samples of 1 kg from bag No.1.
The Apex Court in Netram Vs. State of Rajasthan reported in
2014 (1) CrLR (Raj.) 163 has held that if the samples from each bag
containing poppy husk/poppy straw have not been collected and test by
U.N.Kit has not been conducted on each bag and if the Seizure Officer has
taken out some quantity of narcotic drug from each bag and after mixing the
same has taken out some portion for sample, then, the same is not in
conformity with the Standing Instruction No.1/88 issued by the Narcotics
Control Bureau, New Delhi, particularly, Instruction No.1.7 and, as such, it
cannot be said that the narcotic contraband recovered in the matter is of
commercial quantity or above.
Learned counsel for the applicant placed a reliance upon Criminal
Misc. Bail Application No.9660/2021 (Omprakash Verma Vs. State of
UP) passed by High Court of Judicature at Allahabad, Lucknow Bench
wherein para 6 and 11, it has been held:-
6. Learned counsel for the applicant has submitted
that the general procedure for sampling provided
in Standing Order No. 01 of 1989 dated
13.06.1989 has not been complied by the opposite
party. He has relied upon clause 2.1 to 2.8 of the
aforesaid standing order quoted herein below :-
"2.1 All drugs shall be classified, carefully,
weighed and sampled on the spot of seizure.2.2
All the packages/containers shall be numbered and
kept in lots for sampling. Samples from the
narcotic drugs and psychotropic substances seized,
shall be drawn on the spot of recovery, in
duplicate, in the presence of search witnesses
(Panchas) and the persons from whose possession
the drug is recovered and a mention to this effect
should invariably be made in the panchnama
drawn on the spot.
2.3 The quantity to be drawn in each sample for
chemical test shall not be less than 5 grams in
respect of all narcotic drugs and psychotropic
substances save in the cases of opium, ganja and
charas (hashish) were a quantity of 24 grams in
each case is required for chemical test. The same
quantities shall be taken for the duplicate sample
also. The seized drugs in the packages/containers
shall be well mixed to make it homogeneous and
representative before the sample (in duplicate) is
drawn.
2 . 4 In the 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 case of seizure of more than one
package/container.
2.5 However, when the packages/containers seized
together are of identical size and weight, bearing
identical markings and the contents of each
package given identical results on colour test by
the drug identification kit, conclusively indicating
that the packages are identical in all respects the
packages/container may be carefully bunched in
lots of 10 package/containers except in the case of
ganja and hashish (charas), where it may be
bunched in lots of, 40 such packages/containers.
For each such lot of packages/containers, one
sample (in duplicate) may be drawn.
2.6 Where after making such lots, in the case of
hashish and ganja, less than 20
packages/containers remain, and in the 4 case of
other drugs, less than 5 packages/containers
remain, no bunching would be necessary and no
samples need be drawn.
2.7 If such remainder is 5 or more in the case of
other drugs and substances and 20 or more in the
case of ganja and hashish, one more sample (in
duplicate) may be drawn for such remainder
package/container.
2.8 While drawing one sample (in duplicate) from
a particular lot, it must be ensured that
representative sample the in equal quantity is taken
from each package/container of that lot and mixed
together to make a composite whole from which
the samples are drawn for that lot. 11. The Apex
Court in case of Noor Aga v. State of Punjab
(2008) 16 SCC 417 , has held in paragraphs 123,
124 and 125 that the standing order in dispute and
other guidelines issued by the authority having
legal sanction are required to be complied by the
arresting authorities. For ready reference the
aforesaid paragraphs are quoted hereinbelow:-
œ(123) Guidelines issued should not only be
substantially complied, but also in a case
involving penal proceedings, visavis a
de pa r tme nta l proceeding, rigours of such
guidelines may be insisted upon. Another
important factor which must be borne in mind is as
to whether such directions have been issued in
terms of the provisions of the statute or not. When
directions are issued by an authority having the
l e g a l sanction granted therefore, it becomes
obligatory on the part of the sub ordinate
authorities to comply therewith.
(124) Recently, this Court in State of Kerala &
Ors. v. Kurian Abraham (P) Ltd. & Anr.3 ,
following the earlier decision of this Court in
Union of India v. Azadi Bachao Andolan4 , held
that statutory instructions are mandatory in nature.
(125) Logical corollary of these discussions is that
the guidelines such as those present in the Standing
Order can not be blatantly flouted and substantial
compliance therewith must be insisted upon for so
that sanctity of physical evidence in such cases
remains intact. Clearly, there has been no
substantial compliance of these guidelines by the
investigating authority which leads to drawing of
an adverse interference against them to the effect
that had such evidence been produced, the same
would have gone against the prosecution.
Learned counsel for the applicant submits that applicant has been
falsely implicated in the case. He is in custody since 22.11.2021. He
undertakes to cooperate in investigation/trial. Conclusion of trial will take
time. Co-accused Quban Khan has been extended benefit of bail by this
Court by order dated 13.05.2022 passed in M.Cr.C. 15626/2022. On such
premises, learned counsel for the applicant prayed for bail.
Learned counsel for the State opposed the prayer and prayed for
dismissal of the application.
Both the Advocates are heard. Case diary perused.
Looking to the facts and circumstances of the case, but without
commenting on the merits of the case, this Court is of the opinion that the
application should be allowed and by allowing the application it is
ordered that if applicant furnishes cash security of Rs.50,000/- along with
bail bond of Rs.50,000/- (Rupees Fifty Thousand only) with one solvent
surety in the like amount to the satisfaction of the trial Court, he should be
released on bail.
He will present during trial before the trial Court on each and every
date. In case of any default, cash security of Rs.50,000/- shall be
forfeited without giving any notice.
Before parting with the case, this Court deprecates the
investigation, seizure and sample taking process of Sub-Inspector
Hitgopal Yadav who did not perform sampling as per aforesaid
provisions of the Act, due to which accused persons who are involved
in commercial business of contraband, got released on bail. S.P.,
Sheopur is directed to make an enquiry against Sub-Inspector
Hitkumar Yadav and submit his report.
Application stands allowed and disposed of.
Copy of this order be sent to the trial Court concerned for compliance.
Copy of this order be also sent to I.G. Chambal Range for
necessary action and issuing directions to Subordinate officers to
investigate the NDPS Crime in aforesaid manner so that accused
persons involved in commercial business of contraband should not get
benefit of foul investigation.
Certified copy as per rules.
(DEEPAK KUMAR AGARWAL)
YOGENDR
V. JUDGE
A OJHA ojha
2022.05.3
1 12:34:03
+05'30'
