Vishnu vs State Of Rajasthan

Manoj Kumar Garg, J

Learned counsel for the appellant submits that the appellant is inside the jail since 23.12.2017. The recovery of contraband was made from the appellant on 23.12.2017 and the samples were sent for FSL on 26.12.2017, but inventory in this case was prepared on 15.07.2018. Counsel further submits that this shows that there 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 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 appellant for suspension of the sentence.

Heard learned counsel for the parties and perused the material available on record.

Upon a consideration of the arguments advanced on behalf of the appellant 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 appellant.

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 Act Cases, Hanumangarh, vide judgment dated 06.10.2022 in Sessions Case No.18/2018 against the appellant-applicant– Vishnu S/o Sant Kumar, shall remain suspended till final disposal of the aforesaid appeal subject to the condition that the appellant shall deposit 50% of the fine amount as imposed by the learned trial Court and he shall be released on bail, provided he 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 his appearance in this court on 05.07.2024 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

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

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.

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

Appellant shall deposit 50% of fine amount as imposed by the learned 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.