Madhya Pradesh High Court
Kishanlal vs The State Of Madhya Pradesh on 4 October, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1 CRA-4440-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 4440 of 2023
(KISHANLAL AND OTHERS Vs THE STATE OF MADHYA PRADESH )
Dated : 04-10-2024
Shri Amit Singh Sisodia - Advocate for the appellant.
Shri Shrey Raj Saxena - Dy.A.G for the respondent/State.
Heard on I.A No.15495/2024 which is third application under Section
389 of Cr.P.C for suspension of sentence filed on behalf of appellant
Kishanlal Regar mainly on the ground that the co-convict Mukesh has been
granted suspension of sentence by order dated 27/8/2024.
2. The appellant has been convicted under Sections 8/18(B) of NDPS
Act and sentenced to undergo R.I for 10 years with fine of Rs.1,00,000/-
with default stipulation.
3. Counsel for the appellant submits that in the present case,
mandatory provisions of Section 52 (A) of NDPS Act has not been complied
with. He has referred the relevant Panchanama to prove the said fact that the
sample was drawn by the investigating officer himself and not by the
Magistrate. It is further argued that the sample drawn by the investigating
officer was sent for FSL and the sample which has drawn before the
Magistrate was not sent for FSL. Counsel for the appellant submits that the
issue involved in the present case is squarely covered by the decision
rendered by the Supreme Court in the cases of Simarnjit Singh Vs. State of
Punjab passed in Criminal Appeal No.1443 of 2023 (Arising out of S.L.P.
(Crl.) No.1958 of 2023) reported as (2023 LiveLaw (SC) 570); Mohammed
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Khalid and another Vs. The State of Telangana reported in (2024) 5 SCC
393; Yusuf @ Asif Vs. State passed in Criminal Appeal No.3191 of 2023
(Arising out of S.L.P. Crl.) No.3010 of 2023) dated 13.10.2023; and Union
of India Vs. Mohanlaland another reported as (2016) 3 SCC 379 as the
samples have not been drawn in accordance with Section 52-A of Narcotic
Drugs and Psychotropic Substances Act, 1985 (in short „the Act of 1985‟).
4. Counsel for the State though supports the order of conviction and
sentence but could not dispute the aforesaid submissions that the sample was
drawn by I.O and the sample drawn before the Magistrate was not sent to
FSL.
5. After hearing learned counsel for the parties and considering the
relevant panchnama of drawn sample, it is apparent that the provisions of
Section 52(A) of NDPS Act has not been complied with. It would also be apt
to refer to the decision rendered by the Supreme Court in the case of
Simranjit Singh (supra), in which also, the same issue had arisen as to how
the sample is to be drawn from the contraband seized and before whom, the
relevant paras of which read as under:-
" 5 . The learned counsel appearing for the appellant
relied upon a decision of this Court in the case of Union
of India v. Mohanlal & Anr.1. He submitted that the
prosecution is vitiated as the work of drawing sample
was done by PW-7 without taking recourse to
subsection 2 of Section 52A of the NDPS Act. He also
pointed out that the examination-in-Chief of PW-7 SI
Hardeep Singh which shows that the samples were
drawn immediately after the seizure. 6. The learned
counsel appearing for the respondent-State supported
the impugned judgments.
7. We have perused the evidence of PW-7 Hardeep
Singh in which he has stated that from the eight bags of
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poppy husk, two samples of 250 gms each were drawn
and converted into 16 parcels. This has been done
immediately after the seizure.
8. 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.
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
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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.
1 7 . 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."
The same view has been reiterated in a recent judgment by the Apex
Court in the case of Mohd. Khalid (supra).
6. In view of the aforesaid, it is established that the provisions of sub-
Section 3 of Section 52(A) of the NDPS Act, 1985 has not been complied
with and the sample drawn and certified by the Magistrate in compliance of
sub-Sections 2 & 3 of Section 52(A) of the NDPS Act, 1985 has not been
sent for FSL report. Accordingly, prima facie case is made out for suspension
of sentence on the following conditions:-
A ) That the appellant shall not indulge in any offence while on
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bail/suspension of sentence. If the appellant indulges in any offence while on
bail/suspension of sentence, the prosecution shall be at liberty to apply for
cancellation of bail/suspension of sentence.
B ) That the appellant shall mark his presence before the concerned
Police Station once in every two months during the pendency of trial.
7. Accordingly, I.A No.15495/2024 is allowed. The jail sentence of
appellant is suspended upon his/her 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/her appearance before the Registry of this Court on 20/11/2024 and
on subsequent dates as may be fixed in this behalf by the Registry.
8. With the aforesaid, I.A is disposed off.
CC as per rules.
(VIJAY KUMAR SHUKLA)
JUDGE
PK
