Rajasthan High Court - Jodhpur

Kishan Lal vs State Of Rajasthan on 9 March, 2023

Bench: Farjand Ali

[2023/RJJD/006350]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1213/2022

S.B. Criminal Appeal No. 1592/2022

Kishan Lal S/o Gokal, Aged About 40 Years, Garawala Ps Doogla Dist. Chittorgarh (Raj.). (Presently Lodged In Central Jail Udaipur).

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

----Respondent

For Appellant(s) : Ms. Kajal, daughter of the appellant, present in person.

For Respondent(s) : Mr. Gaurav Singh, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

09/03/2023 Lawyers are abstaining from appearing before the court.

The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment dated

20.09.2022 passed by the learned Special Judge, NDPS cases, No.

2, Chittorgarh in Sessions Case No.05/2017(06/2014) whereby he

was convicted and sentenced to suffer maximum imprisonment of

10 years under Section 8/15(ग) and 8/25 of NDPS Act.

Briefly stated, the facts of the instant case are that a car

was intercepted by the police at the time of 'nakabandi' near

Katera chauraha on 20.12.2013 at about 06:30 P.M. The petitioner

got flustered after being spotted by the police and tried to turn his

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car around so as to flee from that area. Upon suspicion, the police

officers searched the vehicle and during search, total four bags of

poppy husk were found in the car containing a total of 91.290

kilograms of Poppy husk which was seized by the police and the

seizing officer took 500 grams of poppy husk from each bag for

sampling respectively; all the samples of 500 grams each collected

from separate bags were mixed together in a single bag and

thereafter, two samples of 500 grams each were taken from the

aforesaid admixture.

It is contended on behalf of the applicant that the learned

trial Judge has not appreciated the correct, legal and factual

aspects of the matter and thus, reached at an erroneous

conclusion of guilt, therefore, the same is required to be

appreciated again by this court being the first appellate Court.

Samples from each of the four bags were drawn for testing,

however, those samples were mixed together and thereafter, two

samples of 500 grams each were sent for FSL. Since samples from

each of the bags were not separately sent for testing, it cannot be

said with utmost certainty that each of the bags contained poppy

husk and that the quantity of the recovered contraband is 91.290

kilograms.

Per contra, learned Public Prosecutor vehemently opposes

the prayer made by learned counsel for the accused-appellant and

submits that the matter pertains to recovery of 91.290 kilograms

of poppy husk and the judgment of conviction passed by learned

Court below does not warrant any interference. The impediment

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contained under Sections 32-A and 37 of NDPS Act will be

attracted in the factual situation of the present case.

Heard and perused the material available on record.

After consideration of the submissions and careful scanning

of the record, more particularly the seizure memo, it is observed

that no separate sample from each bag was taken and all the

samples were mixed together or intermingled therefore, the

possibility cannot be ruled out that some of the bags may be filled

with contraband and rest may be filled with neutral substances. 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.

This Court is cognizant of the provisions contained in

Sections 32-A and Section 37 of the NDPS Act but considering the

submissions made by the representative of the accused-appellant

regarding non-compliance of statutory procedure, this court is of

the opinion that it is a fit case for suspending the sentence

awarded to the accused appellant.

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:-

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"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 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

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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 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."

Since it cannot be established that each of the bags was

filled with the alleged contraband amounting to commercial

quantity, thus, the possibility that the alleged ceased contraband

contained in each single bag weighed well below commercial

quantity cannot be ruled out, therefore, the embargo contained

under Section 37 of NDPS Act would not be attracted. For

[2023/RJJD/006350] (6 of 7) [SOSA-1213/2022]

instance, if the four bags were allegedly recovered from the

principal and only two bags were having contraband substance

and rest of the two bags did not have any contraband; though all

maybe of same colour, when we mix the substances of all the four

bags into one or two; then definitely, the forensic result would as

such test in the affirmative for whole of the quantity when in fact,

contraband was only contained in two bags.

The petitioner is behind the bars since long 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 applications for suspension of sentence filed

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

sentence passed by learned Special Judge, NDPS cases, No. 2,

Chittorgarh in Session case No. 05/2017 vide judgment dated

20.09.2022 against the appellant-applicants- Kishan Lal S/o

Gokal 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/- to the satisfaction of the learned trial Judge for his

appearance in this court on 12.04.2023 and whenever ordered to

do so till the disposal of the appeal on the conditions indicated

below:-

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1. That he will appear before the trial Court in the

month of January of every year till the appeal is

decided.

2. That if the applicant changes the place of

residence, he will give in writing their changed

address to the trial Court as well as to the counsel

in the High Court.

3. Similarly, if the sureties change their

addresses,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 in a separate file. Such file be registered as

Criminal Misc. Case related to original case in which the accused-

applicant was 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.