[Cites 36, Cited by 0]
Madhya Pradesh High Court
Jorge Renan Solis Fernandez vs Directorate Of Revenue Intelligence on 23 March, 2026
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1 CRA-4282-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 4282 of 2024
(JORGE RENAN SOLIS FERNANDEZ Vs DIRECTORATE OF REVENUE INTELLIGENCE )
Dated : 23-03-2026
Shri Rishi Malhotra, Senior Advocate assisted by Ms.Ansuiya and
Shri Lucky Bijolia - Advocate for the appellant.
Shri Chandan Airen - Advocate for the respondent.
Heard on I.A No.549/2026 , which is third application under Section
430(1) of BNSS for suspension of sentence filed on behalf of the appellant
Jorge Renan Solis Fernandez.
2. The appellant has been convicted under Section 21(c) r/w 8(c),
Section 29 r/w 21(c), 23(c) & 8(c) of NDPS Act and sentenced to undergo
R.I for 20 years, 20 years and fine of Rs.2,00,000/-, Rs.2,00,000/- with
default stipulation.
3. The first application of the appellant was rejected by detailed order
dated 13/11/2024. Against the said rejection of application for suspension of
jail sentence, a Special Leave to Appeal (cri) No.17874/2024 was filed before
the Apex Court. The Apex Court passed the following order:-
Learned senior counsel appearing for the petitioner, on
instructions, seeks permission to withdraw this petition
with liberty to the petitioner to avail such other remedy
as may be avaiable under law and to apply before the
High Court by way of an application for an early hearing
of the pending appeal on its own merits.
Permission granted.
The special leave petition is dismissed as withdrawn
with as prayed.
4. The appeal was listed in the list of final hearing. However, present
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repeat application for jail sentence was filed and, therefore, the matter was
taken up in motion hearing for consideration of the said application. As per
the prosecution case, the appellant infact reargued the matter and raised
almost same grounds which were raised at the time of consideration of the
first application.
5. The facts of the case are that one Mr. Kamal Kumar Sharma (PW-1)
received an information from his sources that one foreign national will be
visiting Indore between 24th September to 27th September 2018 and one
Manu Gupta along with Mohammad Sadiq shall hold a meeting with the
foreigner either on 24th or 25th September 2018 at M/s. Science
Intermediary, G-1, Luxury House, 10" South Tukoganj, Indore in connection
with supply/smuggling of huge quantity of Fentanyl HCL and the said
information was further communicated telephonically to Shri Nitin Aggarwal
(PW-31), the then DD, IZU, on 21.09.2018 through Shri Jaspreet Singh
Sukhija (PW-30), the then Deputy Director, DRI, HORS, New Delhi. The
said Shri Nitin Aggarwal (PW-31) passed on the said information to Shri Hari
Shankar Gurjar, the complainant herein (PW-32). On the basis of the said
information, various teams were constituted by DRI on 25.09.2018 and raids
were conducted at 10, South Tukaganj, Indore and at second floor of 111-B,
Polo Ground. It is alleged that contraband Fentanyl HCL was recovered from
both the above mentioned places. During search at 10, South Tukaganj, the
officers of DRI alleged to have recovered and seized commercial quantity of
Fentanyl HCL i.e. 4077 grams in the presence of three accused persons
namely, Mohd. Sadiq, Manu Gupta and Solis Fernandez Jorge and in the
3 CRA-4282-2024
presence of one Man Singh Dandotiya PW-17. Similarly, during search at
2nd Floor of 111-B, Polo Ground, Indore, the officers of DRI is alleged to
have recovered and seized commercial quantity of Fentanyl HCL i.e. 5110
grams in the presence of two witnesses namely, Majid Khan PW-25 and Ram
Chander Chaudhary PW-26 on 25.09.2018. Similarly, during the search at G-
12, Amar Aangan, Basant Vihar, Indore, the officers of DRI alleged to have
recovered and seized commercial quantity of Fentanyl HCL i.e. 1724 grams
on 26.09.2018. Thus, the entire quantity of alleged recovery of contraband
was 10911 grams. The prosecution examined 32 witnesses in support of its
case whereas defence examined 2 witnesses. The learned trial Court had also
examined chemical expert Ms. Seema Srivastav as court witness. After
arguments the Ld. Spl. Judge found the appellant guilty of offences u/s 21
(C), and 29 read with 8 (C) & 23 (C) of NDPS Act vide impugned judgment
dated 12.05.2023 and sentenced the appellant to undergo RI for 20 years and
also imposed a fine of Rs. 2 Lakh each and was also ordered to further
undergo rigorous imprisonment of 1 year for default of payment of fine, vide
order dated 12.05.2023.
6. He argued that since the appellant has been acquitted under Section
27(A) and 27(A) r/w Section 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter to be referred as the Act) therefore, the
appellant could not have been convicted under Section 21(C), 23(C) and 8
(C) of the Act. He argued that even if the entire prosecution case is accepted,
the charge which is established is only for attempt/preparation to export and
import the contraband and also intention to purchase the said contraband.
4 CRA-4282-2024
There is no provision under the Act making an attempt to be an offence under
NDPS Act. The trial Court has erred while passing an order of sentence after
conviction contrary to the provisions of Section 318 of Cr.P.C. It ought to
have referred the matter to the High Court for the purpose of sentence. It is
further urged that the trial Court imposed the sentence higher than the
minimum sentence prescribed under the Act contrary to the provisions of
Section 32(B) of the Act. It was further argued that there is violation of
mandatory provisions of Section 50 and Section 52(A) of the Act. In support
of his submission, he has placed reliance on the following judgments:-
A ) Ashok vs. State of U.P, (Crl. Appeal No.771/2024) reported in
(2025) 2 SCC 381 .
B) S.K Raju vs. State of West Bengal reported in (2018) 9 SCC 708 .
C) State of Rajasthan vs. Parmanand reported in (2014) 5 SCC 345 .
D) Dilip vs. State of M.P , reported in (2007) 1 SCC 450 .
E ) Vijaysingh Chandubha Jadeja vs. State of Gujarat , reported in
(2011) 1 SCC 609 .
F) Mange Ram vs. State of Bihar (Crl. Appeal DB No.808/2021 dated
20.9.2023).
G) Union of India vs. Mohan Lal, reported in (2016) 3 SCC 379 .
H) Yusuf vs. State, (Crl. Appeal No.3191/2023 dated 13.10.2023) .
I) Mohd. Khalid vs. State of Telangana reported in (2024) 5 SCC 393 .
J ) Simranjit Singh vs. State of Punjab (Crl. Appeal No.1443/2023
dated 9.5.2023).
K) Kamal Franklin vs. State of Orissa(Crl. Appeal No.36/2014).
5 CRA-4282-2024
L) Gurdev Singh vs. State of Punjab reported in (2021) 6 SCC 558.
M ) Bharat Aambale vs. State of Chattisgarh (Crl. Appeal
No.250/2025).
N ) The State of Himachal Pradesh vs. Surat Singh (Crl. Appeal
No.96/2018).
7. Per contra, counsel for the respondent opposed the prayer for grant
of suspension of sentence. He submitted that acting upon intelligence, the
officers of DRI on 25-26/09/2018 have seized six packets of "Fentanyl"
having total weight 4077 grams (4 Kgs.) at M/s. Science Intermediary from
the joint and conscious possession of the appellant and other two co-accused
Shri Manu Gupta and Shri Mohd. Sadik. Upon the information supplied by
the co-accused Shri Manu Gupta, during the search at M/s. Science
Intermediary, G-1, Luxury House, 10, South Tukoganj, Indore a further
search at the office premises of the co-Appellant Shri Manu Gupta situated at
M/s. Mondiale Merchantile (P) Limited, G-12, Amar Angan, Basant Vihar,
Colony, Indore was also conducted and at the instance of co-appellant 8
bottles containing "Fentanyl" were seized on 26.09.2018 and out of these 8
bottles, contents of seven bottles seized from the premises having exclusive
possession of the co-appellant Shri Manu Gupta were found to contain
"Fentanyl" total weighing 1.724 Kgs. and only one bottle was not found to
have any psychotropic/Narcotic Substance. Another search was also
conducted at the Laboratory of co-accused Shri Mohd. Sadique situated at III-
B, Pologround, Indore and seized 4286 gram (4.2 Kgs) of "Fentanyl" and
also the raw material for manufacturing the contraband were seized. Thus, the
6 CRA-4282-2024
total quantity seized in the case is 10.911 Kgs which is many times more than
the commercial quantity of "Fentanyl". After conclusion of the trial, learned
trial Court has found the appellant as well as the co-accused persons guilty
for the offences under Section 8/21(c) r/w 23 (c), 29 of the NDPS Act, 1985
and vide Judgement dated 12.05.2023 sentenced the appellant to undergo R.I.
for 20 years alongwith fine of Rs. 2,00,000/- each.
8. Combating the submission of the learned counsel for the respondent
argued that there is no denial of fair trial as there is no violation of provisions
of section 273, 277, 279(2) & 318 of CRPC. There is also no violation of the
provisions of section 50 & 32B of NDPS Act. The conviction is based on
after due appreciation of evidence. The appellant was represented by various
eminent lawyers and referred various order-sheets to show that the appellant
was permitted to seek legal advice from Mexican law authorities. The
charges were read over to him and were explained to the appellant with the
assistance of an interpreter Shri Mohan Chandani. After framing of the
charges, he never objected about the translation of the charges into Spanish
language as incorrect. His contention regarding that he was unable to
understand the charges, is an afterthought as no such plea had been taken. In
the Criminal Revision filed before this Court as Cr.R. 02/2020, he also filed
an application through his advocate before the trial Court for appointing a
new interpreter and by order dated 13.12.2019, he was granted liberty to
engage a new interpreter. He did not engage a new interpreter if he had
doubted the credibility of the interpreter appointed by prosecution. The
appellant at the time of statement under section 313 Cr.P.C., the assistance of
7 CRA-4282-2024
an interpreter engaged by the appellant himself through his Advocate was
provided. He filed an application under section 315(1)(a) Cr.P.C. at the stage
of defence evidence but he has not produced any evidence in his defence. He
also relied on the testimony of one Shri Udit Bhargav (PW-13), Shri Bhavani
Shankar (PW-2) and Shri Naveen Kumar Soni (PW-21). Thus, the contention
of the appellant that he was denied fair trial sans merit. He also argued that
the provisions of section 50 of NDPS Act & other provisions were followed.
The application for suspension of jail sentence of co-convicts has already
been rejected in Criminal Appeal No.8778/2023 and in Criminal Appeal
No.8711/2023. In support of his submission, he has placed reliance on the
judgment passed by the Apex Court in the case of Shivnarayan Kabra vs.
State of Madras, AIR 1967 SC 986. He vehemently argued that at the stage of
consideration of application under section 389, the Appellate Court should
not re-appreciate the evidence.
9. The quantity of contraband is much higher quantity than the
commercial quantity prescribed for the same and, therefore, the bar under
section 37 of NDPS Act would apply. In support of submission, he has
placed reliance on the judgment passed by the Apex Court in the case
o f Ratan Kumar Vishwas vs. State of U.P. & Anr. (2009) 1 SCC 482 . He
further referred the judgment passed by Single Bench of this Court in the case
of Gauri Shankar Ramanna & Ors. vs. State of M.P. 2008(4) M.P.H.T. 301
and the judgment passed by the Apex Court in the case of Narcotics Control
Bureau vs. Kashif reported in 2024 SCC Online Sc 3848 . On the basis of the
aforesaid submissions and the judgments, he prayed for dismissal of
8 CRA-4282-2024
application for suspension of sentence and submitted that the judgments
relied by the counsel for the appellant does not apply to the facts of the
present case.
10. We have heard learned counsel for the parties.
11. The first question arises for consideration that whether there is
non-compliance of provisions of Section 273, 277, 278(3), 279, 281 & 318 of
CRPC. In order to appreciate the said issue, it is apposite to refer certain
provisions of the Code of Criminal Procedure contained in Chapter XXIII of
the CRPC.
"272. Language of Courts. --The State Government may
determine what shall be, for purposes of this Code, the
language of each Court within the State other than the
High Court.
273. Evidence to be taken in presence of accused. --
Except as otherwise expressly provided, all evidence
taken in the course of the trial or other proceeding shall
be taken in the presence of the accused, or, when his
personal attendance is dispensed with, in the presence of
his pleader.
Explanation.--In this section, "accused" includes a
person in relation to whom any proceeding under
Chapter VIII has been commenced under this Code.
277. Language of record of evidence. --In every case
where evidence is taken down under Section 275 or
Section 276,--
(a) if the witness gives evidence in the language of the
Court, it shall be taken down in that language;
(b) if he gives evidence in any other language, it may, if
practicable, be taken down in that language, and if it is
not practicable to do so, a true translation of the evidence
in the language of the Court shall be prepared as the
9 CRA-4282-2024
examination of the witness proceeds, signed by the
Magistrate or presiding Judge, and shall form part of the
record;
(c) where under clause (b) evidence is taken down in a
language other than the language of the Court, a true
translation thereof in the language of the Court shall be
prepared as soon as practicable, signed by the Magistrate
or presiding Judge, and shall form part of the record:
Provided that when under clause (b) evidence is taken
down in English and a translation thereof in the language
of the Court is not required by any of the parties, the
Court may dispense with such translation.
279. Interpretation of evidence to accused or his
pleader.--(1) Whenever any evidence is given in a
language not understood by the accused, and he is
present in Court in person, it shall be interpreted to him
in open Court in a language understood by him.
(2) If he appears by pleader and the evidence is given in
a language other than the language of the Court, and not
understood by the pleader, it shall be interpreted to such
pleader in that language.
(3) When documents are put for the purpose of formal
proof, it shall be in the discretion of the Court to
interpret as much thereof as appears necessary.
318. Procedure where accused does not understand
proceedings.--If the accused, though not of unsound
mind, cannot be made to understand the proceedings, the
Court may proceed with the inquiry or trial; and, in the
case of a Court other than a High Court, if such
proceedings result in a conviction, the proceedings shall
be forwarded to the High Court with a report of the
circumstances of the case, and the High Court shall pass
thereon such order as it thinks fit."
12. In regard to non compliance of the provisions of Section 50 and
Section 32 (B) of the Act we had already considered the aforesaid submission
10 CRA-4282-2024
in detail. However, we consider it apposite to reconsider the same.
NON-COMPLIANCE OF SECTIONS 50 & 32B OF NDPS ACT
13. The other submission of the counsel for the appellant that non
compliance of the provisions of section 50 is concerned, on 25-26.09.2018
on a raid conducted by the prosecution, 6 packets of "Fentanyl" having total
weight of 4077 grams (4 Kgs.) at M/s. Science Intermediary from the joint
and conscious possession of the appellant and 2 other accused persons were
seized. Upon the information supplied by the co-accused Shri Manu Gupta
during the search at M/s. Science Intermediary, G-1, Luxury House, 10,
South Tukoganj, Indore a further search at the office premises of the co-
appellant Shri Manu Gupta situated at M/s. Mondiale Merchantile (P)
Limited, G-12, Amar Angan, Basant Vihar Colony, Indore was also searched
and at the instance of co-appellant 8 bottles containing "Fentanyl" were
seized on 26.09.2018 and out of these 8 bottles contents of seven bottles
seized from the premises having exclusive possession of the co-appellant Shri
Manu Gupta were found to contain "Fentanyl" total weighing 1.724 Kgs.
Another search was also conducted at the instance of co-accused Shri Mohd.
Sadique and quantity of 4286 Kgs of "Fentanyl" was seized. There is no
merit in regard to the non-compliance of provisions of section 50 of NDPS
Act because the contraband was seized from a factory premises which was
found to be in possession of the appellant and the other co-accused persons.
The procedure prescribed under section 41 and section 50 of NDPS Act was
followed as Memorandum of Arrest Ex.P/168 & P/169 bears signatures of
panch and is counter signed by the appellant and information of his arrest had
11 CRA-4282-2024
been given to his wife which has been clearly mentioned in the arrest memo.
The reasons of his arrest had also been explained and mentioned in the arrest
memorandum. Prosecution witness Navin Soni (PW-21) deposed that he was
working in DRI, Indore. He was informed by the Deputy Director of his
Department Shri Nitin Agrawal that some actions are to be taken in some
case. His senior officer Shri V.K. Sharma informed him that the proceedings
of NDPS case are to be carried out and, therefore, he should remain ready. A
search authorisation was issued vide Ex.P/54 by Shri V.K. Sharma. On the
same day in pursuant to the search warrant they had gone to the spot. The
search warrant was duly signed by panchas. In pursuant to the search warrant,
they conducted the search and in the premises the appellant and the other
accused persons were found. The accused persons were informed in the
presence of gazetted officer PW-18 Vijay Kumar Sharma that whether they
want to be searched by gazetted officer, they stated that they are ready to get
search of the premises in the presence of gazetted officer. In this regard
Ex.P/55 was executed which bears the signature of the present appellant and
the signatures of the other panchas. The testimony of PW-21 Navin Soni is
duly supported by PW-18 Vijay Kumar Sharma, Gaurav Tiwari (PW-20).
Panch witness Kushal Rege (PW-14) has also supported the prosecution case.
From the testimony of these witnesses, it is proved beyond doubt that the
contraband was seized from the factory premises in the presence of the
appellant along with the other accused persons. The contention of counsel for
the appellant that the provisions of Section 50 has not been followed cannot
be accepted. In the case of S.K. Raju alias Abdul Haque alias Jagga vs. State
12 CRA-4282-2024
of West Bengal (2018) 9 SCC 708 , the Apex Court after referring the
judgment in the case of State of Punjab vs. Baldev Singh (1999) 6 SCC
172 and also the judgment in the case of State of Rajasthan vs. Parmanand
(2014) 5 SCC 345 held that strict compliance with Section 50(1) of the
NDPS Act applies only in the case of a search of a person and not in the case
where the contraband was recovered from bag carried by accused.
14. In the case of Kallu Khan vs. State of Rajasthan (2021) 19 SCC
197, the Apex Court held that the recovery of contraband from polythene bag
beneath the seat of unnumbered motorcycle which was not owned by
him and, therefore, compliance of Section 50 is not attracted. In a recent
judgment decided on 20.08.2024 by the Supreme Court in the case of State of
Kerala vs. Prabhu, Criminal Appeal No.3434/2024 referring to the judgment
passed in the case of Baldev Singh (supra) and also State of MP vs. Pawan
Kumar (2005) 4 SCC 350 held that the position of law on the question
regarding the requirement of compliance with Section 50 of NDPS Act is no
more res integra and in an unambiguous term held that if the recovery was
not from the person but from a bag carried by him, the procedural formalities
prescribed under Section 50 of the NDPS Act was not required to be
complied with. Thus, in the present case the recovery of contraband is not
from the person, but the search and recovery was conducted of the premises
of factory which was found to be in possession of the present appellant and
the other convicts, thus the trial Court has rightly held that there is no non-
compliance of section 50 and also section 41 of the Act.
15. In the case of Jogaram vs. Union of India (Special Leave to
13 CRA-4282-2024
Appeal (Crl.) No.14335/2024), the Supreme Court has made following
observations, which are relevant to be quoted as under:-
"6. We should be mindful of the fact that the petitioner
has been convicted for the offence under the NDPS Act.
He may be having good case on merits in appeal but
today while considering his plea for suspension of
sentence, we should not discuss the merits of the appeal.
Nothing glaring or palpable has been pointed to us on
the basis of which it could be said that the conviction on
the face of it is not sustainable in law."
16. In the case of Bharat Aambale (supra), the Supreme Court has
considered the non-compliance of provisions of Section 52A of the NDPS
Act which are also relevant to be quoted and the same are as under:-
"50.4. The procedure prescribed by the Standing
Order(s) / Rules in terms of Section 52A of the NDPS
Act is only intended to guide the officers and to see that
a fair procedure is adopted by the officer in-charge of the
investigation, and as such what is required is substantial
compliance of the procedure laid therein.
50.5. Mere non-compliance of the procedure under
Section 52A or the Standing Order(s) / Rules thereunder
will not be fatal to the trial unless there are discrepancies
in the physical evidence rendering the prosecution's case
doubtful, which may not have been there had such
compliance been done. Courts should take a holistic and
cumulative view of the discrepancies that may exist in
the evidence adduced by the prosecution and appreciate
the same more carefully keeping in mind the procedural
lapses."
18. The law laid down in the case of Kashif (supra) has not been
overruled where it has been held that every violation does not have the effect
of vitiating the case of the prosecution and that the alleged violation has to be
viewed from the perspective of the nature of the duty imposed on the
14 CRA-4282-2024
investigating officer by the relevant statutory provisions and its effect on the
conviction. Substantial compliance would be sufficient for the Court not to
record any order of acquittal and thus the onus of proving substantial
compliance was fully discharged as we have discussed. In the facts of the
prosecution case also, it cannot be said that the trial was vitiated. Even
otherwise, the provisions were complied with. The contention that the
sentence is contrary to the provisions of Section 32(B) of the Act, was also
considered on the previous occasion in detail. However, the same is
reconsidered.
19. The order of suspension of some other cases would not render any
assistance because they do not lay down any law. Further contention of
section 32B of NDPS Act that the trial Court ought to have not awarded
sentence more than minimum sentence sans merit. Because section 32B of
NDPS Act is not exhaustive and it does not take away the discretion of the
Court to award higher sentence than the minimum sentence. The other
submission of the counsel for the appellant that the conviction is based on her
statement under Section 67 of the NDPS Act only which is not admissible in
the evidence. He relied on the judgment passed by the Apex Court in the case
o f Toofan Singh vs. State of Tamil Nadu (2021) 4 SCC Page 1 . In the
subsequent judgment in the case of Union of India vs. Khaliludin CA 1841-
1842/2022, the Apex Court held that despite the judgment passed in the case
of Toofan Singh (supra), the bail applications can be rejected on the basis of
statement of co-accused under section 67. However, in the present case, the
conviction is not based only on the statement of section 67, but the
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prosecution has also proved its case beyond doubt by the testimony of
prosecution witnesses PW-15 Raghvendra Gaur, PW-18 Vijay Kumar, PW-
20 Gaurav Tiwary, PW-21 Navin Soni and CCTV footage.
20. The trial Court has recorded reasons for awarding higher sentence
than the minimum sentence prescribed under section 32B. In the present
case, the total quantity of contraband "Fentanyl" is almost 11 Kgs. whereas
the commercial quantity of the said contraband is only 0.1 gram. The
contraband is highly harmful and dangerous which can affect the entire
society.
21. Counsel for the appellant has also placed us before a so-called letter
of Embassy of Mexico. However, the same is not an official communication
as the same has not been sent through Government of India and the letter is
produced by the counsel for the appellant himself. Even otherwise, on the
basis of the said letter, the application cannot be allowed as we do not find
the case for grant of suspension of jail sentence on merit itself.
22. For the above reasons, we do not find any merit on this ground
also. Though the appellant has been acquitted in certain offences, but he has
been convicted under section 21(C) r/w section 29, 23(C) and 8(C) of NDPS
Act. The ingredients of abetment and criminal conspiracy has been
established by the prosecution. As the appellant was found to be in
possession of a factory along with the other co-convicts and he was seen
fetching criminal conspiracy in the CCTV footage. In the case of Omprakash
Sahni vs. Jai Shankar Chaudhary (2023) 6 SCC 123, the Apex Court held in
para 33 that the appellate Court should not re-appreciate the evidence at the
16 CRA-4282-2024
stage of section 389 CRPC and try to pickup few lacunas or loopholes here or
there in the case of the prosecution.
23. In light of the aforesaid assimilation of facts, evidence and the law
laid down in the various judgments, we do not find any case for grant of
suspension of jail sentence. The application (IA No.549/2026) is dismissed.
(VIJAY KUMAR SHUKLA) (ALOK AWASTHI)
JUDGE JUDGE
PK
