Rajasthan High Court - Jodhpur

Tej Singh vs State Of Rajasthan (2025:Rj-Jd:29783) on 8 July, 2025

Author: Farjand Ali

Bench: Farjand Ali

[2025:RJ-JD:29783]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                               No. 868/2025

Tej Singh S/o Jawan Singh, Aged About 25 Years, Resident Of
Bassi Ghevra, Police Station Osian District Jodhpur. At Present
Shramikpura House No. 170, Masuria Jodhpur (Lodged In Sub
Jail Jaitaran)
                                                                   ----Petitioner
                                    Versus
State Of Rajasthan, Through Pp
                                                                 ----Respondent


For Petitioner(s)         :     Mr. Birbal Ram Bishnoi
For Respondent(s)         :     Mr. Surendra Bishnoi,AGA



                HON'BLE MR. JUSTICE FARJAND ALI

Order

08/07/2025

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 25.04.2025 passed by the learned Additional Session

Judge, Jetaran, District Pali in Sessions Case No.- 62/2016

whereby he was convicted and sentenced vide order dated

28.04.2025 to suffer maximum imprisonment of 10 years'

R.I. under Section - 8/15 of NDPS Act ,1985 and in default of

payment of fine of Rs. 1,00,000/-. further to undergo 1 year

R.I..

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. He was on bail during trial

and did not misuse the liberty so granted to him; hearing of

the appeal is likely to take long time, therefore, the

application for suspension of sentence may be granted.

3. 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.

4. Heard and perused the material available on record.

5. Having heard the learned counsel for the parties and upon

perusal of the record, this Court finds that the present case is

riddled with serious infirmities which cast grave doubt on the

sustainability of the conviction. It is contended that the

prosecution has failed to place on record the primary and

control samples alleged to have been recovered from the

appellant. It is further submitted that the seized articles were

never produced before the trial court along with the requisite

FSL seal. It is also not the case of the prosecution that

Exhibits S1 to S11 (alleged contraband) were ever presented

before the trial court in their original form or even as control

samples, duly sealed and identified.

6. Ordinarily, an investigating officer is expected to first recover

and seal the seized contraband and thereafter forward the

same for FSL examination. However, in the present case,

there is no cogent evidence to show that the original articles

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or the representative samples were ever produced in court.

Instead, it appears that only the FSL report was relied upon

for securing conviction, despite the absence of the actual

contraband articles being tendered in evidence.

7. Even when objection was raised during trial regarding non-

production of the articles, the learned trial court purportedly

directed the forwarding of a representative sample to the

FSL. However, the trial was ultimately decided merely on the

basis of the FSL Report, which too remains unexplained in

terms of the chain of custody and authenticity of the sample

sent. A conviction based purely on such a report, without the

material foundation being established through proper

recovery, production and proof of the seized substance,

cannot be held to be safe or sustainable.

8. The reliance on the FSL Report, which gave a positive opinion

regarding the nature of the substance, becomes highly

debatable in light of the conspicuous absence of clinching

corroborative evidence showing that the tested sample

indeed originated from the accused-applicant. The

prosecution has failed to bridge the evidentiary gap with

respect to continuity, custody and identity of the seized

contraband.

9. If, as alleged, the learned trial court decided to send only a

representative sample to the FSL in order to allay any doubt,

then prudence demanded that the trial be deferred till receipt

of the FSL report. Proceeding to convict the accused in such a

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situation, without the presence of material evidence or timely

FSL confirmation, seriously undermines the credibility of the

judicial process.

10. Furthermore, reliance has been placed on Exhibit P-

31A, a copy of the daily Rojnamcha of the concerned police

station, which discloses a startling revelation about the

suspected loss or missing status of the articles from the

police station. Such a circumstance, in itself, is sufficient to

shake the very foundation of the prosecution case.

11. The mandate under Section 52A of the NDPS Act, which

envisages a lawful procedure for preparation of inventory,

sampling, and certification of seized contraband under

judicial supervision, appears to have been observed in

breach. It is specifically noted that although an inventory of

the seized article was prepared on 24.04.2019, the sample so

inventoried was never forwarded for forensic examination to

the FSL. This omission strikes at the root of the evidentiary

value of the inventory and renders the subsequent reliance

on any such sample or report unsustainable. The very

purpose of Section 52A -- to ensure credibility, authenticity,

and judicial oversight over the seized substance -- stands

defeated due to non-compliance with its essential safeguards.

The inventory was prepared almost nine years later, thereby

reducing it to a redundant, post-facto exercise with little

evidentiary value.

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12. The conviction based solely on the FSL report (Exhibit

P-29), in the absence of original seizure material, proper

sampling procedures, chain of custody, or reliable inventory,

renders the entire prosecution case suspect. The

sustainability of the conviction under such debilitative

evidentiary circumstances is seriously in question. In view of

these glaring lapses and the doubtful credibility of the

recovery proceedings, it would not be safe or just to allow

the appellant to continue in custody during the pendency of

the appeal.

13. Accordingly, the application for suspension of sentence

filed under Section 430 BNSS is allowed and it is ordered that

the sentence passed by learned trial Court, the details of

which are provided in the first para of this order, against the

appellant-applicant named above 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 08.08.2025 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.

[2025:RJ-JD:29783] (6 of 6) [SOSA-868/2025]

(3) Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court.

7. 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