Madhya Pradesh High Court
Roshan Lal @ Chhotu Barman vs State Of Mp on 19 February, 2025
1 CRA-5202-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 5202 of 2024
(ROSHAN LAL @ CHHOTU BARMAN Vs STATE OF MP )
Dated : 19-02-2025
Shri G.S. Pandey - Advocate for the appellant.
Smt. Samta Jain - Panel Lawyer for State.
Heard on IA No.10046/2024, which is an application under Section 5
of the Limitation Act for condonation of delay of 63 days.
Learned counsel for appellant has submitted that the appellant was in
custody since the date of judgment, therefore, he could not file the appeal,
hence, he prayed that delay of 63 days be condoned.
Considering the reasons stated in the application, IA No.10046/2024 is
allowed and delay of 63 days is hereby condoned.
Appeal is admitted for final hearing.
Heard on IA No.3191 of 2025 and on IA No.10045 of 2024, an
application under Section 389(1) of the Code of Criminal Procedure filed on
behalf of appellant for suspension of sentence and grant of bail.
This appeal is filed by the appellant being aggrieved of the judgment
dated 22.12.2023 passed by the learned Special Judge (NDPS) Act,
Jabalpur, District- Jabalpur (M.P.) in SC NDPS No.67/2017 whereby
appellant has been convicted for the offence punishable under Section
8/20(B)(II-C) of the NDPS Act and sentenced to suffer R.I. for 10 years with
fine of Rs.1,00,000/- with default stipulations.
Learned counsel for appellant has submitted that the appellant was
2 CRA-5202-2024
personally searched but no option of Section 50 of the NDPS Act was given
to the appellant that is a mandatory provision of law. It has been written in
the Panchnama that the appellant was ready to be searched by the Police
Officer but no where it has been mentioned that he has legal right to be
searched by Magistrate or Gazetted Officer which shows that no option was
given to the appellant.
Learned counsel for appellant has further submitted that search was
made in the house of the appellant but no contraband was found in the house
of appellant and as Investigating Officer has stated that contraband was
recovered from the Motorcycle of the appellant.
Learned counsel for appellant has further submitted that 9-10 packets
of the contraband was recovered but no sample was taken separately from
each of the packets and has also submitted that the contraband recovered
from the possession of the appellant, had been sealed on the spot but
Investigation Officer (PW-7) has stated that Articles A1 and A2 are the
samples prepared on the spot, were not, that produced before the Court
marked as B1 and B2. The Panchnama of the sampling (Ex.P-15), the place
where the weight of contraband was to be marked, is kept blank and when
Investigation Officer was asked about this, he was unable to explain that why
the place was left blank and on that basis, learned counsel for appellant has
submitted that the weight of contraband Ganja was written after all
proceeding, in the Police Station and case of commercial quantity was made
after that.
Learned counsel for appellant has further submitted that no
3 CRA-5202-2024
independent witnesses has supported the case of prosecution. No sample was
sent by the Police Officer and after the proceeding of 52-A of NDPS, sample
drawn by the Executive Magistrate but sample sent, was not the
representative of all the contraband.
Learned counsel for appellant on this point has relied on the judgment
of coordinate Bench of this Court in Shiva Thakur vs. State of M.P. passed
i n CRA No.4002/2022 vide order dated 26.04.2022 in which it has been
stated that Investigating Officer has drawn the sample of drug and has made
the mixture homogeneous and he has also relied on the judgment of
Jaivardhan vs. State of M.P. passed in M.Cr.C. No.30722/2022 vide order
dated 02.08.2022 in which it is held that the sample of each packets is not
taken out and the contraband is mixed and then sample is taken out,
therefore, it is a possibility that whole sample may demonstrate that it was a
contraband though it may not.
Learned counsel for appellant has also relied on the judgment of
Gaurav Singh vs. State of M.P. passed in CRA No.9333/2022 vide order
dated 24.04.2024 in which it held that no test was conducted on quantity of
tetrahydrocannabinol and then it cannot be said that on the chemical
examination, the contraband was a Ganja. Learned counsel for appellant has
also pressed the same point relying on the judgment of Dayaram Singh and
another vs. State of M.P. passed in M.Cr.C. No.7965/2011 vide order dated
04.03.2024 in which Division of Bench of this Court has held as under :
The contraband allegedly recovered from the petitioners
was subjected to chemical analysis. As per the chemical analysis
4 CRA-5202-2024
report dated 31.3.2011, Ex.A-1 and A-2 were found containing
greenish and whitish coloured leaves, flowers and vegetable item.
The chemical microscope and thin layer chromatography
examination found the contraband to be Ganja.
The FSL report did not show the presence of
tetrahydrocannabinol in any manner. The sample as a whole was
classified as Ganja without any classification based on percentage
of tetrahydrocannabinol. In case of Bhang, tetrahydrocannabinol
in the sample stuff would be 15%. In case of Ganja, it would be
25% and in case of Charas, it would be between 25-40%. The
presence of tetrahydrocannabinol on percentage pattern in the
sample stuff would show whether it is actually Bhang, Ganja or
Charas. In the absence of such percentage of tetrahydrocannabinol
given in the FSL report, no other evidence would make the
recovered contraband to be a Bhang, Ganja or Charas. Reference
can be made to the judgment of the Himachal Pradesh High Court
in Nagendra Shah Vs. State of HP, 2010 (4) RCR (Criminal) 194.
In FSL report no test was applied regarding the presence of
tetrahydrocannabinol and on that basis, it cannot be inferred that contraband
was Ganja.
On that basis, learned counsel for appellant has prayed that looking to
the incarceration period of 2 years as already the appellant has suffered,
appellant's jail sentence may be suspended and he be released on bail and
also sentence of depositing fine be stayed.
5 CRA-5202-2024
Learned counsel for State has opposed the prayer and has submitted
that no case for suspension of jail sentence is made out. Hence, I.A.
10045/2024 be dismissed.
Heard the parties and perused the record.
Looking to the facts and circumstances of the case but without
commenting anything on the merits of the case, I deem it proper to suspend
the remaining jail sentence of appellant.
Accordingly, I.A. No.10045 of 2024 is allowed and IA No.3191 of
2025 is partially allowed looking to the fact that Rs.1,00,000/- has been
imposed as a fine.
Subject to depositing of 75% of the fine amount, if not already
deposited, the remaining jail sentence of the appellant is hereby suspended
and it is directed that the appellant be released on bail on his furnishing a
personal bond for a sum of Rs.50,000/- (Rupees Fifty thousand only) with
one solvent surety of the like amount to the satisfaction of the trial court with
a further direction to appear before the concerning trial court on 07.07.2025
and also on such other dates, as may be fixed by the trial court in this regard
during the pendency of this appeal.
List the matter for final hearing as per its turn and seniority.
Certified copy as per rules.
(DEVNARAYAN MISHRA)
JUDGE
DPS
