Madhya Pradesh High Court
Vishal @ Lala vs The State Of Madhya Pradesh on 13 February, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 2028 of 2023
(VISHAL @ LALA Vs THE STATE OF MADHYA PRADESH)
Dated : 13-02-2024
Shri Abhishek Rathore, learned counsel for the appellant.
Shri Santosh Singh Thakur, learned Public Prosecutor for the
respondent/State.
Heard on I.A No.4759/2023 which is first application under Section 389
of Cr.P.C for suspension of sentence filed on behalf of appellant Vishal@Lala.
2. The appellant has been convicted under Section 8/15(C) of NDPS Act
and sentenced to undergo R.I for 10 years with fine of Rs.1,25,000/- with
default stipulation.
3. As per prosecution story, on 03.03.2013 Assistant sub-inspector of
police Station- Bhaugarh, got a secret information from the informer that one
Eicher truck bearing registration number as MP12B3841 is in possession of
illegal contraband poppystraw. It will be going to Ratlam. Acting upon the
information, sub-inspector along with his team reached at the place of incident
and after some time saw a Eicher truck with the same description, police
reached near the Truck and the person sitting on the conductor side flew away
from the place of incidence and the driver of the truck (present appellant) was
found sitting in the truck. On asking, he disclosed his name as Vishal@lal and
then the police seized 24 Quintals 58 kgs 700gms of poppystraw from the
truck. Sub-inspector arrested the accused and seized the contraband. He was
taken to the police station and then the FIR was registered.
4. Counsel for the appellant submits that the sample from the contraband
was taken at the spot by the investigating officer vide Ex.P-42 which is in
contravention of Section 52(A) of NDPS Act. He further relies on the testimony
of PW-12/Satyanarayan Darra, SDM who deposited in para 1 of his statement
that when he was working as Tehsildar on the relevant date, the seized
contraband alongwith weighing material was produced before him and the
application was moved before him. On the basis of aforesaid exhibit and
testimony of PW-12, counsel for the appellant submits that there is no
compliance of mandatory provision of Section 52(A) of NDPS Act. He relies
on the order passed by the Apex Court in the case of Simranjit Singh Vs.
State of Punjab passed in Criminal Appeal No.1443/2023 (arising out of
SLP(Cri.) No.1958/2023) and in the case of Union of India Vs. Mohanlal
and Anr. reported in 2016 (3) SCC 379. In the case of Mohanlal (supra), the
Apex Court in para 15 to 17 held as under:-
"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.
16. 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 sub- sections (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."
5. The aforesaid judgment of Simranjeet (supra) has been referred by
the Division Bench in Cr.A No.5652/2023 while suspending the jail sentence in
the said case.
6. Counsel for the State submits that as per the testimony of PW-
7/seizure witness and PW-12, it is established that the seized samples were sent
to the Magistrate and the compliance was done.
7. After hearing learned counsel for the parties and after perusal of the
testimony of PW-12/Satyanarayan, it is prima facie evident that the samples
were not taken in presence of the Magistrate which held to be one of the
mandatory provisions in the case of Mohanlal(supra).
8. In view of the aforesaid, this Court finds that prima facie a case is
made out for grant of suspension of sentence.
9. Accordingly, I.A No.4759/2023 is allowed. The jail sentence of
appellant Vishal@Lala is suspended upon his depositing the fine amount, if
not already deposited, and on furnishing a bail bond of Rs.1,00,000/-(Rupees
one lakh only) with one surety in the like amount to the satisfaction of the trial
court for his appearance before the Registry of this Court on 24.4.2023 and on
subsequent dates as may be fixed in this behalf by the Registry.
10. With the aforesaid, I.A No.4759/2023 is disposed off.
11. List the matter in due course.
CC as per rules.
(VIJAY KUMAR SHUKLA)
JUDGE
PK
