BILLU Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Since an identical issue is involved in both the criminal appeals, applications for suspension of sentence and grant of bail to the appellants. are heard analogously and are being disposed of by this common order.

(2.) By the impugned judgment dtd. 27/7/2021 and 1-10-2021n passed by the learned Special Judge (under NDPS Act),Kondargaon, District Kondagaon in Special Criminal Case under the NDPS Act No. 25 of 2017, the appellants stand convicted, as under:-

(3.) Learned counsels for the respective appellants would submit that the trial Court without appreciating the Standing Order No. 1/89 dated 13 th June, 1989 which has been framed by Government of India in exercise of powers conferred by sub-sec. (1) of Sec. 52A of the NDPS Act, 1985 with regard to disposal of seized Narcotics Drug Psychiatric substance has convicted the appellants. Learned counsels for the appellants have drawn attention of this Court towards Sec. 2 of the Standing Order which deals with the general procedure for sampling, storage, etc. They would further submit that as per Standing Order, Clause 2.4, in case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in the case of seizure of more than one package/container. In the present case, there are 14 packets as reflected from identification panchnama of contraband article ganja, therefore, the prosecution should have taken sample in duplicate from each package whereas in the present case after mixing the entire contraband ganja, they have prepared only two samples of 50-50 grams as evident from Ex. P/22. This vital aspect has been ignored by the trial Court while convicting the appellants. He would further submit that Investigating Officer Sarad Dubey (PW-) has described that he has seized 14 packets of contraband ganja from accused persons and after mixing it, he has prepared two samples of 50-50 grams and sealed the same and sent to FSL for chemical examination. He would further submit that the Naib Tahsildar (PW-7) has been examined before the trial court who in his examination-in-chief has stated that in his presence Investigating Officer has mixed the contraband ganja consisting of 14 packets, two samples of 50-50 grams have been prepared from material collected from 14 packets. They would further submit that mandatory provisions of the Act, 1985 have not been complied with by the authorities while convicting the appellants In support of their submission, they would further draw attention of this Court towards the judgment passed by Hon'ble the Supreme Court in the case of Union of India Vs. Bal Mukund and others reported in (2009) 12 SCC 161. They would further submit that again Hon'ble the Supreme Court in the case of Union of India Vs. Mohanlal and another reported in (2016) 3 SCC 379, has examined provisions of Sec. 52-A and 55 of the NDPS Act, handling and disposal of seized narcotic drugs and psychotropic substance and has also considered the Standing Order No. 1/89 to ensure proper security against theft, pilferage and replacement of seized drugs. Learned counsels for the appellants would further submit that the Standing Order No. 1/89 has again come up for consideration before High Court of Delhi in the case of Amani Fidel Chris Vs. Narcotics Control Bureau [CRLA No. 1027 of 2015 (Decided on 13/3/2020)], wherein the Division Bench of Delhi High Court has acquitted the accused on account of non- compliance of mandatory provisions of Standing Order No. 1/89. Against that order, Special Leave to Appeal (Crl.) No. 5088 of 2020 has been filed before the Hon'ble Supreme Court which has also been dismissed by Hon'ble the Supreme Court on 10/2/2021. Learned counsel for the appellants would submit that in identical situation, Division Bench of this Court in Criminal Appeal No. 1616/2018 has granted bail to the appellants vide its order dtd. 24/8/2021, therefore, suspension of sentence and grant of bail to the appellants may be considered and the appellants may be released on bail. Lastly, they would submit that the appellant Billu in CRA No 923 of 2021 has already undergone of jail imprisonment more than five years and five months and appellant Mohammad Imtiyaj in CRA No 1700 of 2021 have already undergone of jail imprisonment more than two years and three months, that the appeal is of the year 2021, final hearing of the appeal will take some time, therefore, the appellants may be enlarged on bail.