Rajasthan High Court - Jodhpur

Balvinder Singh vs State Of Rajasthan on 5 December, 2022

Bench: Farjand Ali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 17/2021

S.B. Criminal Appeal No. 034/2021

Balvinder Singh S/o Harbans Singh, Aged About 38 Years, R/o Mojgarh, P.s. Barada District Ambala, Haryana. (At Present Lodged In Central Jail, Bikaner)

----Petitioner Versus

State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. Sanjay Kumar Poonia For Respondent(s) : Mr. Laxman Solanki, P.P.

HON'BLE MR. JUSTICE FARJAND ALI

Order

05/12/2022

Heard learned counsel for the accused appellant and learned

Public Prosecutor on the application for suspension of sentence

and perused the judgment impugned dated 20.11.2020 passed by

Special Judge (N.D.P.S. cases), Rajgarh, District Churu whereby

the accused appellant has been convicted for the offence

punishable under sections 8/15 and 8/18 of NDPS Act and has

been sentenced with maximum of ten years rigorous

imprisonment along with fine of Rs. 1,00,000/-.

Learned counsel for the accused-appellant submits that the

trial court has grossly erred in convicting and sentencing the

accused-appellant. There are major discrepancies in the

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statements of independent witnesses PW-7 Mukesh Singh and PW-

10 Dharmendra Singh; they have not supported the case of the

prosecution and have turned hostile. The samples of contraband

Opium were collected individually from all the 10 packets for

investigation as per the stipulations in the Standing Instruction

No.1/89 issued by the N.C.B., New Delhi, but these samples were

mixed together and two samples from this admixture marked A

(chemical sample) and B (control sample) were sent to FSL.

Though individual weight of all the packets is known and samples

from each of the 10 packets were drawn for testing but all the

samples were mixed together so it cannot be said with utmost

certainty that each of the packets contained opium and that the

quantity of the recovered contraband is 10 kgs. He further submits

that accused-appellant is behind the bars since 20.11.2018 and

hearing of the appeal likely to take long time to conclude.

Therefore, the application for suspension of sentence may be

granted.

Learned Public Prosecutor vehemently opposes the prayer

made by learned counsel for the accused-appellant and submits

that the matter pertains to recovery of 10 kilograms of Opium and

4 kilograms of Poppy Husk and the judgment of conviction passed

by learned Court below does not warrant any interference.

After careful scanning of the record and consideration of the

submissions it is observed that it cannot be presumed without

solid evidence that all the bags contained contraband. Since the

doctrine of beyond reasonable doubt is applicable in criminal

matters, therefore, even the initial duty lies upon the prosecution

to show that the petitioner was having contraband in all the bags.

If the samples taken from all the bags are mixed and one sample

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is taken from the admixture, the possibility cannot be ruled out

that only one bag was containing contraband.

This court has passed a detailed order in this context in S.B.

Criminal Misc. 3rd Bail Application No. 1162/2022; Ramchandra

v. State of Rajasthan, wherein the rules pertaining to sample

collection contained in Standing Order No. 1/1989 dated

13.06.1989 issued by Government of India under Section 52A of

NDPS Act have been enumerated inter alia other aspects. The

relevant part of the said order is as under:-

"4. Heard learned counsel for the petitioner and learned public prosecutor. Perused the material available on record. The argument that collection of samples was not proper and in accordance with the procedure of sampling as per Standing Order No. 1/1989 seems to be worth considering. Clause 2.1 to 2.8 of the Violation Order/ Instruction No.1 of 1989 dated 13.6.1989 issued by the Government of India under Section 52 A of N.D.P.S. Act are of relevance to the present set of facts and are as follows:

2.1 All drugs shall be classified, carefully, weighed and sampled on the spot of seizure. 2.2 All the packages/containers shall be numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the persons from whose possession the drug is recovered and a mention to this effect should invariably be made in the panchnama drawn on the spot.

2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) were a

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quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.

2.4 In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container.

2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects the packages/container may be carefully bunched in lots of 10 package/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of, 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.

2.6 Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.

2.7 If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container.

2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample the in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.

In simple words, if there were eight plastic bags marked A, B, C,...., H that allegedly contained

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contraband, then eight separate representative samples from each plastic bag marked A1, B1, C1,...., H1 respectively and eight separate representative samples as control samples from each plastic bag marked A2, B2, C2,....,H2 respectively should have been collected for investigation. It is an act of utmost recklessness and irresponsibility that even after collecting separate samples from each of the eight bags, the samples were again mixed together and submitted for investigation as one admixture. Since the samples were not collected in an accurate manner and the possibility of there being no contraband in any one or more of the eight bags cannot be obviated, the contraband can be assumed to be below commercial quantity and the embargo contained under Section 37 of the NDPS Act is not attracted."

Here, in this case as well, each of the packets containing the

alleged ceased contraband was having 1 kg of opium which is well

below commercial quantity and since it cannot be established that

each of the bags were filled with the alleged contraband,

therefore, the embargo contained under Section 37 of NDPS Act

would not be attracted.

The petitioner is behind the bars since more than four years

and the hearing of appeal may take further more time, therefore,

considering the overall submissions and looking to the totality of

facts and circumstances of the case while refraining from passing

any comments on the niceties of the material and the defects of

the prosecution as the same may put an adverse effect on hearing

of the appeal, this court is of the opinion that it is a fit case for

suspending the sentence awarded to the accused appellant.

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Accordingly, the application for suspension of sentence filed

under Section 389 Cr.P.C. is allowed and it is ordered that the

sentences passed by the learned Special Judge (N.D.P.S. cases),

Rajgarh, District Churu, vide judgment dated 20.11.2020 in

Sessions Case No.09/2019 against the appellant-applicant

Balvinder Singh S/o Harbans Singh shall remain suspended till

final disposal of the aforesaid appeal and he shall be released on

bail provided he executes a personal bond in the sum of

Rs.50,000/-with two sureties of Rs.25,000/- each to the

satisfaction of the learned trial Judge for his appearance in this

court on 07.01.2023 and whenever ordered to do so till the

disposal of the appeal on the conditions indicated below:-

1. That he/she/they will appear before the trial

Court in the month of January of every year till the

appeal is decided.

2. That if the applicant(s) changes the place of

residence, he/she/they will give in writing

his/her/their changed address to the trial Court as

well as to the counsel in the High Court.