Rajasthan High Court - Jodhpur

Jagjeet Singh vs State Of Rajasthan (2024:Rj-Jd:23754) on 24 May, 2024

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2024:RJ-JD:23754]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
  S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                No. 445/2022

 1.       Jagjeet Singh S/o Succha Singh, Aged About 50 Years,
          B/c Jat Sikh, R/o Dadahur, Police Station Sadar, Dist.
          Moga (Punjab) (Presently Lodged At Central Jail, Ajmer)
 2.       Baljeet Singh S/o Succha Singh, Aged About 51 Years,
          B/c Jat Sikh, R/o Dadahur, Police Station Sadar, Dist.
          Moga (Punjab) (Presently Lodged At Central Jail, Ajmer)
 3.       Iqbaljeet Singh S/o Mangalsingh Bhullar, Aged About 49
          Years, B/c Jat Sikh, R/o Ward No. 33, Bukanwala Road,
          Gurusar Basti Ke Pass, Ravi Colony, Moga, Police Station
          South City Monga, Dist. Moga (Punjab) (Presently Lodged
          At Central Jail, Ajmer)
                                                                   ----Petitioners
                                     Versus
 State Of Rajasthan, Through Pp
                                                                  ----Respondent


For Petitioner(s)          :     Mr. Mangi Lal Bishnoi
                                 Mr. Mahipal Bishnoi
For Respondent(s)          :     Mr. A.R. Choudhary, PP assisted by
                                 Ms. Kamla Goswami



           HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

24/05/2024

Learned counsel for the appellants submits that appellant

No.3 - Iqbaljeet Singh S/o Mangalsingh Bhullar passed away on

13.12.2022 and his death certificate has also been annexed in the

file.

Hence, the application for suspension of sentence in respect

of appellant No.3 - Iqbaljeet Singh S/o Mangalsingh Bhullar is

dismissed as abated.

[2024:RJ-JD:23754] (2 of 5) [SOSA-445/2022]

So far as appellants No.1 and No.2 are concerned, learned

counsel for the appellants submits that the appellants are inside

the jail for six years and eleven months. The recovery of

contraband was made on 10.06.2017 and the samples were sent

for FSL on 12.06.2017, but inventory before the Magistrate in this

case was prepared on 27.06.2017. Counsel further submits it is

clear cut violation of provisions of Section 52(A) of NDPS Act. He

relied upon the judgment of the Hon'ble Supreme Court in the

case of Union of India Vs. Mohanlal & Anr [AIR Online 2016

SC 606]. In the said judgment, the Hon'ble Supreme Court has

held as under:

"It is manifest from Section 52A (2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. Sub-section (3) of Section 52- A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified

[2024:RJ-JD:23754] (3 of 5) [SOSA-445/2022]

by the Magistrate in compliance with sub-section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction".

Counsel has also relied upon the decision of Hon'ble

Supreme Court in the case of Mohammad Khalid and Anr. Vs.

State of Telangana, Criminal Appeal No.1610/2023,

decided on 01.03.2024. The relevant para is as under:

"Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P-11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot. The offence under Section 20(b)(ii)(c) deals with production, manufacture, possession, sale, purchase, transport, import or export of cannabis. It is not the case of the prosecution that the accused A-3 and A-4 were found in possession of ganja. The highest case of the prosecution which too is not substantiated by any admissible or tangible evidence is that these two accused had conspired sale / purchase of ganja with A-1 and A-2. The entire case of the prosecution as against these two accused is based on the interrogation notes A-1 and A-2".

Learned Public Prosecutor has opposed the prayer made by

the counsel for the appellants for suspension of the sentence.

[2024:RJ-JD:23754] (4 of 5) [SOSA-445/2022]

Heard learned counsel for the parties and perused the

material available on record.

Upon a consideration of the arguments advanced on behalf

of the appellants and having regard to the facts and circumstances

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

case for suspending the substantive sentence awarded to the

accused appellants.

Accordingly, the application 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, District

Bhilwara vide judgment dated 21.04.2022 in Sessions Case

No.67/2017 against the appellants-applicants - (1) Jagjeet Singh

S/o Succha Singh (2) Baljeet Singh S/o Succha Singh shall remain

suspended till final disposal of the aforesaid appeal subject to the

condition that the appellants shall deposit 50% of the fine amount

as imposed by the learned trial Court and they shall be released

on bail, provided each of them executes a personal bond in the

sum of Rs.2,00,000/- with two sureties of Rs.1,00,000/- each to

the satisfaction of the learned trial Judge for their appearance in

this court on 05.07.2024 and whenever ordered to do so till the

disposal of the appeals on the conditions indicated below:-

1. That they will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicants changes the place of residence, they will give in writing their changed address to the trial Court as well as to the counsel in the High Court.