Madhya Pradesh High Court
Smt. Labu Bai vs The State Of Madhya Pradesh on 8 February, 2024
Author: Sujoy Paul
Bench: Sujoy Paul
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 9706 of 2022
(SHYAM SINGH Vs THE STATE OF MADHYA PRADESH)
CRA/11674/2023
Dated : 08-02-2024
Shri M. Shafiqullah - Advocate for the appellant - Shyam Singh in
Cr.A. No.9706/2022 pressed I.A. No.788/2023.
Shri Sharad Prasad Punj - Advocate for the appellant - Smt. Labu Bai
in Cr.A. No.11674/2023 pressed I.A. No.3601/2024.
Shri Anubhav Jain - Government Advocate for the State.
Both the I.A.s are first applications under Section 389(1) of the Cr.P.C
for suspension of sentence and grant of bail to appellants arising out of
judgment dated 03.09.2022 delivered in Special Case No.NDPS/04/2019
passed by Special Judge (NDPS), District Sehore (MP).
The appellants have been convicted under Sections 8(C)/ 20(B)(ii)(C) of
the N.D.P.S. and sentenced to undergo R.I. for 15 years with fine of
Rs.1,00,000/- each, with default stipulation.
It is common ground taken by learned counsel for these appellants that
both the appellants have no criminal record. Appellant - Shyam Singh is in
custody since 23.03.2019, whereas appellant - Labu Bai is in custody from the
date of judgment.
B y taking this Court to the prosecution story, it is submitted that on
22.03.2019, the appellants were allegedly in a vehicle, which was seized and
objectionable substance ganja was allegedly recovered from the vehicle. The
bone of contention of learned counsel for the appellants is that the seizure dated
22.03.2019 by police shows that the sampling was made and samples were
marked as A-1 and A-2. Thereafter, pursuant to an application filed under
Section 52-A of NDPS Act before the Magistrate, Magistrate allowed the
application and sampling before him also had taken place, wherein samples
were marked as Article A-3 and A-4 through Exhibit P-65. The FSL report
(Exhibit P-69) shows that Article A-1, which was seized by police and not a
sample taken before the Magistrate became subject matter of examination. It is
common ground that this procedure is unknown to law and runs contrary to
Section 52-A of the NDPS Act and resent order of Supreme Court in the case
of Simarnjit Singh vs. State of Punjab reported in 2023 LiveLaw (SC)
570. Heavy reliance is placed on para 8 of this order, which reads as under:-
"In paragraphs 15 to 17 of the decision of this Court in
Mohanlal's case, it was held thus: -
"15. It is manifest from Section 52-A(2)include (supra) that
upon seizure of the contraband the same has to be forwarded
either to the officer-in-charge of the nearest police station or
to the officer empowered under Section 53 who shall prepare
an inventory as stipulated in the said provision and make an
application to the Magistrate for purposes of (a) certifying the
correctness of the inventory, (b) certifying photographs of
such drugs or substances taken before the Magistrate as true,
and (c) to draw representative samples in the presence of the
Magistrate and certifying the correctness of the list of samples
so drawn.
1 6 . Sub-section (3) of Section 52-A requires that the
Magistrate shall as soon as may be allow the application. This
implies that no sooner the seizure is effected and the
contraband forwarded to the officer-in-charge of the police
station or the officer empowered, the officer concerned is in
law duty-bound to approach the Magistrate for the purposes
mentioned above including grant of permission to draw
representative samples in his presence, which samples will
then be enlisted and the correctness of the list of samples so
drawn certified by the Magistrate. In other words, the process
of drawing of samples has to be in the presence and under the
supervision of the Magistrate and the entire exercise has to be
certified by him to be correct.
17. The question of drawing of samples at the time of seizure
which, more often than not, takes place in the absence of the
Magistrate does not in the above scheme of things arise. This
is so especially when according to Section 52-A(4) of the
Act, samples drawn and certified by the Magistrate in
compliance with subsections (2) and (3) of Section 52-A
above constitute primary evidence for the purpose of the trial.
Suffice it to say that there is no provision in the Act that
mandates taking of samples at the time of seizure. That is
perhaps why none of the States claim to be taking samples at
the time of seizure."
Per contra, Shri Anubhav Jain, learned Government Advocate opposed
the prayer, but was unable to dispute aforesaid factual ground taken by counsel
for the appellants. In other words, it could not be disputed that examination of
FSL is relating to A-1, a sample drawn by the police and not sample drawn
before the Magistrate.
In this view of the matter and without expressing any conclusive opinion
on the merits of the case, we deem it proper to suspend the remaining jail
sentence of these appellants.
Accordingly, I.A. Nos.788/2023 and 3601/2023 are allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of these appellants is hereby suspended and it is directed
that the appellants, namely - Shyam Singh and Smt. Labu Bai be released
on bail on their furnishing a personal bond for a sum of Rs.2,00,000/- (Rupees
Two Lakhs only) each with one solvent surety each of the like amount to the
satisfaction of the trial Court with a further direction to appear before the trial
Court, District Sehore on 18.03.2024 and also on such other dates as may
be fixed by the trial Court in this regard during the pendency of this appeal.
Certified copy as per rules.
(SUJOY PAUL) (VIVEK JAIN)
JUDGE JUDGE
rj
