Madhya Pradesh High Court
Lala Makodia vs The State Of Madhya Pradesh on 14 October, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1 CRA-11438-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 11438 of 2023
(LALA MAKODIA Vs THE STATE OF MADHYA PRADESH )
Dated : 14-10-2024
Shri Arshad Ahmed Mansoori - advocate for the appellant.
Shri Rajwardhan Gawde - Public Prosecutor for the State.
Heard on I.A No.14353/2024 which is first application under Section
389(1) of Cr.P.C for suspension of sentence filed on behalf of appellant Lala
Makodiya.
2. The appellant has been convicted under Sections 8/15(c) 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 co-convict Punsingh has
been granted suspension of sentence vide order dated 27.08.2024 in Criminal
Appeal No.8935/2023.
4. 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
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 10/14/2024
6:06:31 PM
2 CRA-11438-2023
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
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').
5. 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.
6. 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
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 10/14/2024
6:06:31 PM
3 CRA-11438-2023
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
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 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.
4 CRA-11438-2023
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."
The same view has been reiterated in a recent judgment by the Apex
Court in the case of Mohd. Khalid (supra).
7. 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
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.
8. Accordingly, I.A No.14353/2024 is allowed. The jail sentence of
appellant is suspended upon his/her depositing the fine amount, if not already
5 CRA-11438-2023
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 20/01/2025 and
on subsequent dates as may be fixed in this behalf by the Registry.
9. With the aforesaid, I.A is disposed off.
CC as per rules.
(VIJAY KUMAR SHUKLA)
JUDGE
soumya
