Madhya Pradesh High Court
Samundar Singh vs The State Of Madhya Pradesh on 29 May, 2025
Author: Vishal Dhagat
Bench: Vishal Dhagat
1 CRA-13885-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 13885 of 2024
(SAMUNDAR SINGH Vs THE STATE OF MADHYA PRADESH )
Dated : 29-05-2025
Shri Palash Choudhary - Advocate for the appellant.
Shri H.S.Rathore - Government Advocate for the State.
Appellant has filed I.A. No.2318/2025 an application under Section
430 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS) for suspension of
jail sentence and grant of bail.
2. Appellant has been convicted under Section 8(C)/15(C) of the
NDPS Act and sentenced to undergo R.I. for fifteen years with fine of
Rs.1,00,000/- with default stipulations.
3. Learned counsel appearing for appellant submitted that appellant is
innocent and has falsely been implicated in the case. On secret information
dated 03.06.2012, police apprehended a trolley vehicle bearing No.RJ-09-G-
4154. Vehicle was found to be carrying 53 quintal and 98 Kg of Poppy
straw. It was alleged that applicant was Driving the vehicle in question
without any license. He was arrested on spot. Entire exercise of search and
seizure was conducted by Police Officer without following the mandatory
provisions of law. Entire batch of contraband was mixed and thereafter, the
samples were taken which is evident from Panchnama. Total seized Poppy
straw i.e. 53 quintal and 98 Kg was kept in 176 bags. It is submitted that
samples were not taken out from each of such bags and sent separately for
test. There is violation of standing order. Trial Court failed to take into
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consideration judgment passed in cases of Union of India vs. Mohanlal and
another reported as (2016) 3 SCC 379; Simarnjit Singh Vs. State of Punjab
in SLP (Cri.) No.1958/2023; Mohammed Khalid and Another Vs. The State
of Telangana in CRA No.1610/2023 and order passed by Division Bench of
Indore i n CRA No.1173/2015. Learned counsel appearing for the appellant
has also raised issued of non-compliance of Sections 42 and 50 of the NDPS
Act. Contraband article was not produced before the trial Court in accordance
with Section 52 of the NDPS Act. In these circumstances, jail suspension of
appellant may be suspended and he be released on bail.
4. Learned Government Advocate appearing for the State opposed the
application and submitted that appellant was Driver of the vehicle which was
carrying contraband narcotic drugs or psychotropic substance i.e. Poppy
straw. Seizure is of commercial quantity. As per FSL (Ex.C/1), seizure is
made of Doda Chura which is Psychotropic Substances. Investigation Officer
has complied with provision of law in doing searching and seizure. In these
circumstances, application for suspension of sentence may be dismissed.
5. Heard the counsel for the parties.
6. Relevant paragraphs of case of Simranjit Singh Vs. State of Punjab
passed in S.L.P. (Cri.) No.1958 of 2023 are quoted as under:-
"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
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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
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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."
9. Hence, the act of PW-7 of drawing samples from all the
packets at the time seizure is not inconformity with the law laid
down by this Courtin the case of Mohanlal. This creates a serious
doubt about the prosecution's case that substance recovered was a
contraband."
7. Relevant paragraphs of case of Union of India Vs. Mohan Lal and
another (2016) 3 SCC 379 are quoted as under:-
"14. Section 52-A as amended by Act 16 of 2014,deals with
disposal of seized drugs and psychotropic substances. It reads:
"Section 52A : Disposal of seized narcotic drugs and
psychotropic substances.
(1) The Central Government may, having regard to the
hazardous nature of any narcotic drugs or psychotropic
substances, their vulnerability to theft, substitution, constraints of
proper storage space or any other relevant considerations, by
notification published in the Official Gazette, specify such
narcotic drugs or psychotropic substances or class of narcotic
drugs or class of psychotropic substances which shall, as soon as
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may be after their seizure, be disposed of by such officer and in
such manner as that Government may from time to time,
determine after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic substance has
been seized and forwarded to the officer-in-charge of the nearest
police station or to the officer empowered under section 53, the
officer referred to in sub-section (1) shall prepare an inventory of
such narcotic drugs or psychotropic substances containing such
details relating to their description, quality, quantity, mode of
packing, marks, numbers or such other identifying particulars of
the narcotic drugs or psychotropic substances or the packing in
which they are packed, country of origin and other particulars as
the officer referred to in sub-section (1) may consider relevant to
the identity of the narcotic drugs or psychotropic substances in
any proceedings under this Act and make an application, to any
Magistrate for the purpose of-
(a) certifying the correctness of the inventory so
prepared; or
(b) taking, in the presence of such Magistrate, photographs
of such drugs or substances and certifying such photographs as
true; or
(c) allowing to draw representative samples of such drugs or
substances, in the presence of such Magistrate and certifying the
correctness of any list of samples so drawn.
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(3) When an application is made under sub-section (2), the
Magistrate shall, as soon as maybe, allow the application.
( 4 ) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1872) or the Code of Criminal
Procedure, 1973 (2 of 1974),every court trying an offence under
this Act, shall treat the inventory, the photographs of [narcotic
drugs, psychotropic substances, controlled substances or
conveyances] and any list of samples drawn under sub-section (2)
and certified by the Magistrate, as primary evidence in respect of
such offence."
31. To sum up we direct as under:
31.1. No sooner the seizure of any Narcotic Drugs and
Psychotropic and controlled Substances and Conveyances is
effected, the same shall be forwarded to the officer in-charge of
the nearest police station or to the officer empowered under
Section 53 of the Act. The officer concerned shall then approach
the Magistrate with an application under Section52A(ii) of the
Act, which shall be allowed by the Magistrate as soon as may be
required under Sub- Section 3 of Section 52A, as discussed by us
in the body of this judgment under the heading 'seizure and
sampling'. The sampling shall be done under the supervision of
the magistrate as discussed in paras 13 and 14 of this order.
31.2. The Central Government and its agencies and so also
the State Governments shall within six months from today take
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appropriate steps to set up storage facilities for the exclusive
storage of seized Narcotic Drugs and Psychotropic and controlled
Substances and Conveyances duly equipped with vaults and
double locking system to prevent theft, pilferage or replacement of
the seized drugs. The Central Government and the State
Governments shall also designate an officer each for their
respective storage facility and provide for other steps, measures as
stipulated in Standing Order No. 1/89 to ensure proper security
against theft, pilferage or replacement of the seized drugs.
31.3. The Central Government and the State Governments
shall be free to set up a storage facility for each district in the
States and depending upon the extent of seizure and store required,
one storage facility for more than one districts.
31.4 Disposal of the seized drugs currently lying in the
police maalkhans and other places used for storage shall be carried
out by the DDCs concerned in terms of the directions issued by us
in the body of this judgment under the heading 'disposal of
drugs'."
8. According to the Gazette Notification of Ministry of Finance
(Department of Revenue) dated 23.12.2022, in which in exercise of the
powers conferred under Section 76 read with Section 52-A of the Narcotic
Drugs and Psychotropic Substances Act, 1985, enacted Rules are called
Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling
and Disposal) Rules, 2022. Relevant Rules for adjudication of this case are
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quoted as under:-
"3. Classification of seized material. - (1) The narcotic
drugs, psychotropic substances and controlled substances seized
under the Act shall be classified based on physical properties and
results of the drug detection kit, if any, and shall be weighed
separately.
(2) If the narcotic drugs, psychotropic substances and
controlled substances are found in packages or containers, such
packages and containers shall be weighed separately and serially
numbered for the purpose of identification.
(3) All narcotic drugs, psychotropic substances and
controlled substances found in loose form shall be packed in
tamper proof bag or in container, which shall be serially numbered
and weighed and the particular of drugs and the date of seizure
shall also be mentioned on such bag or container:
Provided that bulk quantities of ganja, poppy straw may be
packed in gunny bags and sealed in such way that it cannot be
tempered with:
Provided further that seized concealing material such as
trolley bags, backpack and other seized articles shall be sealed
separately.
(4) The classification, weighing, packaging and numbering
referred to in this sub-rule shall be done in the presence of search
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witnesses (Panchas) and the person from whose possession the
drugs and substances was recovered and a mention to this effect
shall invariably be made in the panchnama drawn on the spot of
seizure.
(5) The detailed inventory of the packages, containers,
conveyances and other seized articles shall be prepared and
attached to the panchnama.
8. Application to Magistrate. - After the seized material
under the Act is forwarded to the officer-in-charge of the nearest
police station or to the officer empowered under section 53 of the
Act or if it is seized by such an officer himself, he shall prepare an
inventory of such material in Form-4 and apply to the Magistrate,
at the earliest, under sub-section (2) of section 52A of the Act in
Form-5.
9. Samples to be drawn in the presence of Magistrate . -
After application to the Magistrate under sub-section (2) of section
52A of the Act is made, the Investigating Officer shall ensure that
samples of the seized material are drawn in the presence of the
Magistrate and the same is certified by the magistrate in
accordance with the provisions of the said-sub-section.
10. Drawing the samples. - (1) One sample, in duplicate,
shall be drawn from each package and container seized.
(2) When the packages and containers seized together are of
identical size and weight bearing identical marking and the
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contents of each package give identical results on colour test by
the drugs identification kit, conclusively indicating that the
packages are identical in all respects, the packages and containers
may carefully be bunched in lots of not more than ten packages or
containers, and for each such lot of packages and containers, one
sample, induplicate, shall be drawn:
Provided that in the case of ganja, poppy straw and hashish
(charas) it may be bunched in lots of not more than fourty
packages or containers.
(3) In case of drawing sample from a particular lot, it shall
be ensured that representative sample in equal quantity is taken
from each package or container of that lot and mixed together to
make a composite whole from which the samples are drawn for
that lot.
11. Quantity to be drawn for sampling. - (1) Except in cases
of opium, ganja and charas (hashish), where a quantity of not less
than twenty-four grams shall be drawn for each sample, in all
other cases not less than five grams shall be drawn for each
sample and the same quantity shall be taken for the duplicate
sample.
(2) The seized substances in the packages or containers shall
be well mixed to make it homogeneous and representative before
the sample, induplicate, is drawn.
(3) In case where seized quantities is less than that required
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for sampling, the whole of the seized quantity may be sent.
13. Despatch of sample for testing. - (1) The samples after
being certified by the Magistrate shall be sent directly to any one
of the jurisdictional laboratories of Central Revenue Control
Laboratory, Central Forensic Science Laboratory or State Forensic
Science Laboratory, as the case may be, for chemical analysis
without any delay.
(2) The samples of seized drugs or substances shall be
despatched to the jurisdictional laboratories under the cover of the
Test Memo, which shall be prepared in triplicate, in Form-6.
(3) The original and duplicate of the Test Memo shall be
sent to the jurisdictional laboratory along with the samples and the
triplicate shall be retained in the case file of the seizing officer."
9. Relevant paragraphs No.12 and 1 3 in Case of CRA No.4576/2023
are quoted as under:-
"12. As per Rule 13 of Narcotic Drugs and Psychotropic
Substances(Seizure, Storage, Sampling and Disposal) Rules 2022,
samples after being certified by Magistrate shall be sent to one of
jurisdictional laboratory for testing. In present case, samples were
drawn by investigating officer and also before the Magistrate and
samples which were sent to the State Forensic Laboratory was
drawn by investigating officer and was not drawn before the
Magistrate. Therefore, there is non-compliance of Rule 13 of
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Narcotic Drugs and Psychotropic Substances (Seizure, Storage,
Sampling and Disposal Rules,2022).
13. There has to be strict compliance of the Act and Rules
under NDPS Act. Act is a Special Act which is having drastic
consequences on the accused persons in respect of their bails and
freedom. It is duty of prosecution to strict compliance of Rules
which have been framed by the legislature. In this case, there is
non-compliance of Rule 13. Accordingly to section 52-A of
NDPS Act,1985 inventory, photographs, psychotropic substances,
list of samples drawn certificate of Magistrate is to be treated as
primary evidence in the case. In this case, due to non-compliance
of Rule 13, appellant succeeds in appeal."
10. On going through the aforesaid facts and circumstances of the
case, it is found that property seizure memo was prepared at Zero Number on
03.06.2012. Two samples were drawn on spot of 500 grams of Doda Chura.
Procedure under Section 52(A) was done by Executive Magistrate,
Mandsaur on 07.09.2012. Before drawing samples, drug is to be made
homogeneous by mixing it thereafter, two samples are to be drawn. Sample
after being certified by Magistrate is to be sent before Central Revenue
Control Laboratory, Central Forensic Science Laboratory or State Forensic
Science Laboratory for chemical analysis without delay. Sentence to be
imposed under NDPS Act is harsh, therefore, strict compliance is of
provision under NDPS Act is to be made. There may not be false implication
of an accused in case of NDPS Act, therefore, Rules were made for drawing
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of sample before Magistrate and said sample is also to be certified. Said
procedure has not been followed in this case.
11. Considering the aforesaid facts and circumstances of the case, I.A.
No.2318/2025 for suspension of sentence, is allowed. It is hereby directed
that the custodial sentence awarded to appellant shall remain suspended
during the pendency of this appeal and he shall be released on bail subject to
depositing the fine amount, if not already deposited and on furnishing a
personal bond in the sum of Rs.5,00,000/- (Rs.Five Lac Only) with one
solvent surety bond of the like amount to the satisfaction of the trial Court,
for his appearance before the Registry of this Court on 15.12.2025 and on
other dates as may be fixed in this regard till final disposal of this appeal.
12. Certified copy as per rules.
(VISHAL DHAGAT) (VISHAL MISHRA)
V. JUDGE V. JUDGE
$A
