Rajasthan High Court - Jodhpur

Bheru Lal vs State Of Rajasthan ... on 5 October, 2023

Bench: Farjand Ali

[2023:RJ-JD:33597]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1070/2023

S.B. Criminal Appeal No.1746/2023

Bheru Lal S/o Shankar Lal, Aged About 44 Years, Khermaliya, P.s. Chhoti Sadri, Dist. Pratapgarh. (At Present Lodged At Dist. Jail, Chittorgarh).

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


For Petitioner(s)             :    Mr. Shoba Prabhakar
For Respondent(s)             :    Mr. A. R. Choudhary, PP



                HON'BLE MR. JUSTICE FARJAND ALI

                                        Order

05/10/2023

1. The instant application for suspension of sentence has been

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

28.07.2023 passed by the learned Special Judge, NDPS Act Cases

no.2, Chittorgarh in Sessions Case No.141/2021 whereby he was

convicted under Section 8/18(B) of the NDPS Act and sentenced

to suffer 14 years rigorous imprisonment along with a fine of

Rs.2,00,000/- and in default to further undergo two years'

rigorous imprisonment.

2. 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

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

appreciated again by this court being the first appellate Court.

There are several flaws and laches in the case of the prosecution.

He submits that the contraband was recovered on 19.04.2021 and

the samples were taken on that same day, however, the samples

were sent for FSL on 25.06.2021. He submits that the seizing

officer had been informed about the presence of narcotic

substance in the bag of the petitioner before he left to conduct

search and seizure, yet the seizing officer did not relay the above-

mentioned information to the senior officers before proceeding

further which is mandatory under Section 42 of NDPS Act and

thus, the entire process of recovery stands vitiated on this count

because of non-compliance of Section 42 of NDPS Act.

3. Per contra, learned Public Prosecutor has vehemently

opposed the prayer made on behalf of the learned counsel for the

applicant and submits that the matter pertains to recovery huge

quantity of contraband and the judgment of conviction passed by

learned Court below does not warrant any interference. The

impediment contained under Sections 32-A and 37 of NDPS Act

will be attracted in the factual situation of the present case.

4. Heard and perused the material available on record as well

as gone through the statutory provisions applicable in the matter.

5. It is an admitted position that no compliance of Section

42(2)of NDPS Act was made in this present case as the Seizing

Officer candidly admitted in his cross-examination that no

information under section 42(2) was supplied to higher officers

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before proceeding for the search and seizure of contraband. There

remains no question to moot about the fact that there was

previous information with the seizing officer regarding storage of

illegal substance defined as contraband as per the provisions of

NDPS Act, thus, the provision envisaged under Section 42 of NDPS

Act would squarely apply in this case. The prosecution has utterly

failed to establish the fact that the mandatory provisions were

complied with since it is admitted fact that the information was

not supplied to the superior officer according to Section 42(2) of

NDPS Act.

6. At the time of drawing of samples, a sample weighing 30

grams was drawn from each of the bags and sent for FSL,

however, a perusal of the FSL Report dated 18.01.2022 (Exhibit P-

67) reveals that the weight of each of the samples as mentioned

under the Description of Exhibits was more than 30 grams which

places a serious doubt over the case of the prosecution. This fact

coupled with the fact that the recovery was effected on

19.04.2021 and after that the next entry in the Register is of

25.06.2021 when the samples were sent for FSL and there is no

information or update as to what transpired over the span of these

two months after collection of samples deeply impairs the

genuineness of the allegations and if the submission of the learned

counsel or the petitioner regarding previous enmity of the seizing

officer with the petitioner is taken unto account, then it cannot be

said with certainty that the case of the prosecution is based on

true allegations and there is no mala fide on part of the

investigating agency.

[2023:RJ-JD:33597] (4 of 6) [SOSA-1070/2023]

7. In Vijaysinh Chandubha Jadeja Vs. State of Gujarat

reported in AIR 2011 SC 77, the Hon'ble Apex court indicated that

the failure to comply with the provisions of NDPS Act would render

the recovery of illicit articles ineffective and vitiate the conviction.

The relevant part of the judgment is as follows:-

"Under Section 42 of the NDPS Act, the empowered officer can enter, search, seize and arrest even without warrant or authorisation, if he has reason to believe from his personal knowledge or information taken down in writing, that an offence under Chapter IV of the said Act has been committed. Under proviso to Sub-section (1), if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief and send the same to his immediate official superior in terms of Sub-section (2) of the Section."

22.In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of as afeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under Sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."

[2023:RJ-JD:33597] (5 of 6) [SOSA-1070/2023]

8. As per the mandate of law, if the officer has prior information

regarding breach of the provisions of NDPS Act, he is under a legal

obligation to note down the information and before proceeding to

conduct search and seizure, he has to send a report to the

superior officers. It is well settled legal position of law that the

provision of Sections 42 of the NDPS Act is required to be

complied with mandatorily as propounded in the case of

Vijaysinh Chandubha Jadeja (supra).

9. Considering the submissions of learned counsel for the

parties and looking to the totality of facts and circumstances of

the case, and the fact that the hearing of appeal is likely to take

further more time and considering the overall submissions while

refraining from passing any comments on the niceties of the

matter 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.

10. Accordingly, the application for suspension of sentence filed

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

impugned order of sentence dated 28.07.2023 passed by learned

Special Judge, NDPS Act Cases no.2, Chittorgarh in Sessions Case

No.141/2021 against the appellant-applicant Bheru Lal S/o

Shankar Lal 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 09.11.2023 and

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whenever ordered to do so till the disposal of the appeal on the

conditions indicated below:-

(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 his changed address to the trial Court as well as to the counsel in the High Court.