Rajasthan High Court - Jodhpur

Surendra Kumar vs State Of Rajasthan (2024:Rj-Jd:39544) on 23 September, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:39544]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
     S.B. Criminal Misc 2nd Suspension Of Sentence Application
                          (Appeal) No. 1196/2024

                                           In

                     S.B. Criminal Appeal No.2041/2022

Surendra Kumar S/o Laxmandas, Aged About 46 Years, R/o
Chack 9-Y Ps Sadar Srigangangar (Presently Lodged In Central
Jail Sriganganagar)
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan, Through Pp
                                                                    ----Respondent


For Petitioner(s)            :     Mr. Baltej Singh Sandhu
For Respondent(s)            :     Mr. Rajeseh Bhati, AGA



                HON'BLE MR. JUSTICE FARJAND ALI

Order

23/09/2024

1. The instant second application for suspension of sentence

has been moved on behalf of the applicant in the matter of

judgment dated 01.10.2022 passed by the learned Special Judge,

NDPS Act Cases Sri Ganganagar in Sessions Case No.47/2019

whereby he was convicted and sentenced to suffer maximum

sentence rigorous imprisonment of ten years under Section 8/22

of the NDPS Act and sentenced for ten years alongwith fine of

Rs.1,00,000/- and in default of payment of fine to further undergo

one year's RI.

2. His first application for suspension was dismissed as not

pressed by this Court vide order dated 10.05.2023 passed in S.B.

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Criminal Misc. Suspension of Sentence Application No.411/2023.

Hence, the instant application for suspension of sentence.

3. 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. He

submitted that the Seizing Officer collected the samples from the

spot and sent to the FSL for its examination thus, Section 52-A of

the NDPS Act has not been complied with. He is behind the bars

more than five and half years. Hearing of the appeal is likely to

take long time, therefore, the application for suspension of

sentence may be granted.

4. Per contra, learned public prosecutor has vehemently

opposed the prayer made on behalf of the accused-applicant for

releasing the appellant on application for suspension of sentence.

5. Heard learned counsel for the parties and perused the

material available on record as also the impugned judgment.

6. It is emanating from the record that on 15.01.2019, SHO,

PS Jawahar Nagar along with his team during patrolling upon

suspicion apprehended Surendra Kumar and upon search 16

boxes in which 400 strips containing 4000 tablets of Tramadol

Hydrochloride Tablets 100 MG Trio-SR weighing 1 Kg 600 gms

were recovered from his possession. During interrogation, he

disclosed that the medicinal drug was purchased by him by one

Lakhveer Singh and when Lakhveer Singh was interrogated he

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answered that he purchased the said contraband from Rinku @

Rajesh. Thereafter, by adopting usual mode, investigation was

undertaken and the recovered contraband was seized and the

samples were marked by the Seizing Officer wehreafter the same

were sent to the FSL for its chemical examination. A case under

Section 8/22 under the NPDS Act got registered.

7. Admittedly, the inventory though prepared but not in

accordance with the mandate provided under Section 52-A of the

NDPS Act, neither samples were taken on the same day nor in the

presence of a Judicial Magistrate. As per the mandate of law, the

samples taken in the presence of the Magistrate, ought to have

been sent to the FSL for its chemical examination. Having not

done so, the Investigating Agency has committed a grave error

and as such, the FSL report would not help the case of the

prosecution.

8. It would be worthwhile to mention here that by virtue of

powers given under Section 52-A r.w. Section 76 of the NDPS Act,

the Central Govt. Department of Finance issued a Gazette

Notification dated 23.12.2022 regarding classification, seizing,

sealing, storing, taking samples of the contraband etc. called as

Narcotic Drugs and Psychotropic Substances (seizure,

search, sampling and disposal), Rules 2022 (hereinafter referred

as 'the Rules of 2022'). The said Rule came into force from

23.12.2022. It would be relevant to reproduce certain provisions,

which are as under:-

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3. Classification of seized material. -

(1) The narcotic drugs, psychotropic substances and controlled substances seized under the Act shall be classified based on physical properties and results of the drug detection kit, if any, and shall be weighed separately.

(2) If the narcotic drugs, psychotropic substances and controlled substances are found in packages or containers, such packages and containers shall be weighed separately and serially numbered for the purpose of identification.

(3) All narcotic drugs, psychotropic substances and controlled substances found in loose form shall be packed in tamper proof bag or in container, which shall be serially numbered and weighed and the particular of drugs and the date of seizure shall also be mentioned on such bag or container:

Provided that bulk quantities of ganja, poppy straw may be packed in gunny bags and sealed in such way that it cannot be tempered with:

Provided further that seized concealing material such as trolley bags, backpack and other seized articles shall be sealed separately.

(4) The classification, weighing, packaging and numbering referred to in this sub-rule shall be done in the presence of search witnesses (Panchas) and the person from whose possession the drugs and substances was recovered and a mention to this effect shall invariably be made in the panchnama drawn on the spot of seizure.

(5) The detailed inventory of the packages, containers, conveyances and other seized articles shall be prepared and attached to the panchnama.

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4. ........

5. ........

6. .........

7. ........

8. Application to Magistrate. - After the seized material under the Act is forwarded to the officer-in- charge of the nearest police station or to the officer empowered under section 53 of the Act or if it is seized by such an officer himself, he shall prepare an inventory of such material in Form-4 and apply to the Magistrate, at the earliest, under sub-section (2) of section 52A of the Act in Form-5.

9. Samples to be drawn in the presence of Magistrate. - After application to the Magistrate under sub-section (2) of section 52A of the Act is made, the Investigating Officer shall ensure that samples of the seized material are drawn in the presence of the Magistrate and the same is certified by the magistrate in accordance with the provisions of the said-sub- section.

10. ........

11. ........

12. ........

13. Despatch of sample for testing. -

(1) The samples after being certified by the Magistrate shall be sent directly to any one of the jurisdictional laboratories of Central Revenue Control Laboratory, Central Forensic Science Laboratory or State Forensic Science Laboratory, as the case may be, for chemical analysis without any delay.

(2) The samples of seized drugs or substances shall be despatched to the jurisdictional laboratories under the

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cover of the Test Memo, which shall be prepared in triplicate, in Form-6.

(3) The original and duplicate of the Test Memo shall be sent to the jurisdictional laboratory alongwith the samples and the triplicate shall be retained in the case file of the seizing officer.

9. A combined reading of Rules 3, 8, 9 & 13 of the Rules of

2022 manifesting that after seizure of the contraband, the officer

has to move an application to the Magistrate and whereafter, the

samples are supposed to be taken in his presence and whereafter

the verified samples are supposed to be sent to the Forensic

Laboratory for the purpose of detection of any Narcotic Drugs and

Psychotropic Substance in the seized article. Ostensibly, no such

task has been undertaken in this case and thus, it would be a

serious question of law as to whether the FSL report of the

samples taken from the spot can be treated as a decisive piece of

evidence to substantiate the charge so as to punish him under the

NDPS Act.

10. Admittedly, in the case at hand, the samples which were

sent to the FSL were not sent after getting verification from the

Magistrate as envisaged under the Rules of 2022 aforesaid which

is direct contravention of the Rules of 2022.

11. In another judgment titled as Mohammed Khalid and

another Vs. The State of Telangana passed by Hon'ble the

Supreme Court in Criminal Appeal No(S). 1610 Of 2023 dated

01.03.2024, wherein it was held that since no proceedings were

undertaken for preparing of inventory and drawings of samples as

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per Section 52-A of NDPS Act, thus, the FSL was considered to be

a waste and was not considered worthy of being read in evidence

on the basis of this inter alia other aspects, Hon'ble the Apex

Court acquitted the appellants of all charges. The relevant

paragraph of the above judgment is reproduced as under:-

"22. 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 P11) is nothing but a waste paper and cannot be read in evidence."

12. Hon'ble the Supreme Court has propounded guidelines on

the subject of bail in the case of Satender Kumar Antil (supra)

and has held as under:-

"41. Sub-section (2) has to be read along with Sub- section (1). The proviso to Sub-section (2) restricts the period of remand to a maximum of 15 days at a time. The second proviso prohibits an adjournment when the witnesses are in attendance except for special reasons, which are to be recorded. Certain reasons for seeking adjournment are held to be permissible. One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so notwithstanding the beneficial provision Under Section 436A of the Code which stands on a different footing.

42. ......

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43. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available Under Section 436A would also be considered, the Courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant.

44. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred Under Section 436A of the Code among other factors ought to be considered for a favourable release on bail."

(Emphasis Supplied)

If the pleas raised by the defence which have substance, are

finally decided in favour of the accused and against the

prosecution then certainly the appellant may be acquitted from

the charge and in that situation it would not be possible for this

Court to return back him the days of long five and half years,

which he spent behind the bars.

13. Considering the overall facts and circumstances of the case

and looking to the fact that as some of the questions raised by the

learned counsel for the appellant deserves to be appreciated again

and if the same will be decided in his favour, he may get acquittal;

he has served more than five years and looking to voluminous

pendency of the cases, there is no likelihood of hearing of the

appeal on merits in near future, thus, while refraining from

passing any comments on the niceties of the matter and the

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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.

14. Accordingly, the second 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 01.10.2022

passed by learned Special Judge, NDPS Act Cases Sri Ganganagar

in Sessions Case No.47/2019 against the appellant-applicant

Surendra Kumar S/o Laxmandas, 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 25.10.2024 and 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.