Rajasthan High Court - Jodhpur

Bhanwarlal vs State Of Rajasthan on 8 December, 2022

Bench: Farjand Ali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 701/2022

S.B. Criminal Appeal No. 1260/2022

Bhanwarlal S/o Gheesa Ram, Aged About 45 Years, B/c Meghwal, R/o Pratapgarh, Police Station Raas, Tehsil Raipur, Dist. Pali. (Presently Lodged At Dist. Jail, Bhilwara)

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. ML Bishnoi For Respondent(s) : Mr. Laxman Solanki, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

08/12/2022

Heard learned counsel for the accused appellant and learned

Public Prosecutor on the application for suspension of sentence

and perused the judgment impugned dated 18.07.2022 passed by

Special Judge (N.D.P.S. cases), Bhilwara whereby the accused

appellant has been convicted for the offence punishable under

sections 8/15 and 8/25 of NDPS Act and has been sentenced with

maximum of ten years rigorous imprisonment along with fine of

Rs. 1,00,000/- for each offence.

Learned counsel for the accused-appellant submits that the

trial court has grossly erred in convicting and sentencing the

accused-appellant. He submits that it is clear from the on-oath

statement in the trial of PW-2 Mahfooz Ahmed, the then SI of

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Police Station Pur, District Bhilwara that two bags containing a

total of 62.5 kilograms of Poppy Straw were seized by the police

and the seizing officer took 250 grams of poppy straw from each

bag for chemical sample and control sample; both the samples of

250 grams were mixed together and thereafter, sample from the

admixture of 500 grams was taken. Thus, it is clear that the

Seizing Officer did not properly collect and send separate samples

from each of the gunny bags for testing. The samples of

contraband poppy straw were collected individually from the two

gunny bags 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. He further submits the appellant was on bail

during trial and he never misused the liberty granted in his favour.

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 62.5 kilograms of Poppy

Straw 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 both the bags were containing contraband.

During cross examination, the seizing officer said that he took 250

grams from both the gunny bags, and after mixing both, put them

in one single cloth bag then sent the bag for FSL as chemical

sample and in the same manner, a control sample was also drawn

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for testing. The seizing officer also stated in cross examination

that he only sent one sample for FSL. This is further verified from

the FSL report (Exhibit P-55) which reflects receipt of a single

packet marked-C containing 500 grams of substance. It means

samples taken from both the gunny bags were mixed and one

single sample was prepared and that was marked C. The memo

also mentioned that only a single sample marked C was sent. He

was released on bail during trial on the same ground. 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 gunny bags are mixed and one

sample is taken from the admixture, the possibility cannot be

ruled out that only one bag was containing contraband. The

weight of one gunny bag is below the commercial quantity.

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

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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 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.

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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 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, the alleged ceased contraband

contained in each of the two gunny bags weighed well below

commercial quantity and since it cannot be established that each

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of the bag was 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 fifteen

month months in total and the hearing of appeal may likely to

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.

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),

Bhilwara, vide judgment dated 18.07.2022 in Sessions Case

No.40/2018 against the appellant-applicant Bhanwarlal S/o

Gheesa Ram 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 10.01.2023 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

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

well as to the counsel in the High Court.

3. Similarly, if the sureties change their

address(s),they will give in writing their changed

address to the trial Court.

The learned trial Court shall keep the record of attendance of

the accused-applicant(s) in a separate file. Such file be registered

as Criminal Misc. Case related to original case in which the

accused-applicant was/were tried and convicted. A copy of this

order shall also be placed in that file for ready reference. Criminal

Misc. file shall not be taken into account for statistical purpose

relating to pendency and disposal of cases in the trial court. In

case the said accused applicant does not appear before the trial

court, the learned trial Judge shall report the matter to the High

Court for cancellation of bail.