Allowed

Harpal Singh v. State of Rajasthan

Rajasthan HC12 Dec 2022SOSA/136/2022

Case brief

AI extract

What is this about?

High Court allowed suspension of sentence pending appeal in NDPS case due to violations of mandatory sample collection rules under Standing Order No. 1/1989, creating doubt about commercial quantity. Released appellants on bail.

What did the court decide?

Application for suspension of sentence allowed; appellants released on bail with personal bond of Rs. 50,000 and two sureties pending appeal disposal.

Harpal Singh Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 136/2022

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S.B. Criminal Appeal No. 1077/2021

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Harpal Singh S/o Baba Singh, Aged About 46 Years, Gali No. 9 Bajigar Basti Jakhal, P.s. Jakhal, Dist. Fatehabad (Haryana).

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Richapal Singh S/o Avtar Singh Sikh Jaat, Aged About 43 Years, Savanbas Ki Dhani, P.s. Jakhal, Dist. Fatehabad (Haryana).

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----Petitioners

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Versus

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State Of Rajasthan, Through Pp

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----Respondent

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For Petitioner(s)	: Mr.	RK Charan
For Respondent(s)	: Mr.	Laxman Solanki,PP

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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12/12/2022

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Heard learned counsel for the accused appellants and learned Public Prosecutor on the application for suspension of sentence and perused the judgment impugned dated 27.10.2021 passed by learned Special Judge (N.D.P.S. cases) No. 2, chittorgarh whereby the accused appellants have been convicted for the offence punishable under sections 8/15(ग) of NDPS Act and have been sentenced to maximum of ten years rigorous imprisonment along with fine of Rs. 1,00,000/- as well as for the offence punishable under Section 8/18(ग) of NDPS Act and have

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(2 of 7)

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[SOSA-136/2022]

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been sentenced to maximum of four years rigorous imprisonment along with fine of Rs. 40,000/-.

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Learned counsel for the accused-appellants submits that the trial court has grossly erred in convicting and sentencing the accused-appellant. The samples of contraband Opium were collected individually from all the 12 packets for investigation as per the stipulations in the Standing Instruction No.1/89 issued by the N.C.B., New Delhi, but these samples were mixed together and two samples from this admixture marked A (chemical sample) and B (control sample) were sent to FSL. Therefore, the application for suspension of sentence may be granted. He further submits that accused-appellant is behind the bars since long and hearing of the appeal likely to take long time to conclude. Therefore, the application for suspension of sentence may be granted.

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Learned Public Prosecutor vehemently opposes the prayer made by learned counsel for the accused-appellants and submits that the matter pertains to recovery of one kilogram of Opium and 115 kilograms of Poppy Husk and the judgment of conviction passed by learned Court below does not warrant any interference.

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After careful scanning of the record and consideration of the submissions it is observed that it cannot be presumed without solid evidence that all the bags contained contraband. Since the doctrine of beyond reasonable doubt is applicable in criminal matters, therefore, even the initial duty lies upon the prosecution to show that the accused-appellants were having contraband in all the bags. If the samples taken from all the bags are mixed and one sample is taken from the admixture, the possibility cannot be ruled out that only one bag was containing contraband.

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(3 of 7)

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[SOSA-136/2022]

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This court has passed a detailed order in this context in S.B. Criminal Misc. 3rd Bail Application No. 1162/2022; Ramchandra v. State of Rajasthan , wherein the rules pertaining to sample collection contained in Standing Order No. 1/1989 dated 13.06.1989 issued by Government of India under Section 52A of NDPS Act have been enumerated inter alia other aspects. The relevant part of the said order is as under:-

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“4. Heard learned counsel for the petitioner and learned public prosecutor. Perused the material available on record. The argument that collection of samples was not proper and in accordance with the procedure of sampling as per Standing Order No. 1/1989 seems to be worth considering. Clause 2.1 to 2.8 of the Violation Order/ Instruction No.1 of 1989 dated 13.6.1989 issued by the Government of India under Section 52 A of N.D.P.S. Act are of relevance to the present set of facts and are as follows:

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2.1 All drugs shall be classified, carefully, weighed and sampled on the spot of seizure. 2.2 All the packages/containers shall be numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the persons from whose possession the drug is recovered and a mention to this effect should invariably be made in the panchnama drawn on the spot.

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2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) were a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and

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(4 of 7)

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[SOSA-136/2022]

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representative before the sample (in duplicate) is drawn.

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2.4 In the 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 case of seizure of more than one package/container.

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2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects the packages/container may be carefully bunched in lots of 10 package/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of, 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.

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2.6 Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.

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2.7 If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container.

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2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample the in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.

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In simple words, if there were eight plastic bags marked A, B, C,...., H that allegedly contained contraband, then eight separate representative samples from each plastic bag marked A1, B1, C1,...., H1 respectively and eight separate representative samples as control samples from each plastic bag marked A2, B2, C2,....,H2 respectively

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(5 of 7)

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[SOSA-136/2022]

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should have been collected for investigation. It is an act of utmost recklessness and irresponsibility that even after collecting separate samples from each of the eight bags, the samples were again mixed together and submitted for investigation as one admixture. Since the samples were not collected in an accurate manner and the possibility of there being no contraband in any one or more of the eight bags cannot be obviated, the contraband can be assumed to be below commercial quantity and the embargo contained under Section 37 of the NDPS Act is not attracted.”

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Here, in this case as well, the alleged seized contraband contained in each of the packets weighed well below the commercial quantity and since it cannot be established that each of the bag was filled with the alleged contraband, therefore, the embargo contained under Section 37 of NDPS Act would not be attracted. Moreovert, as per Exhibit P-11 Seizure memo, the samples were taken from each of the twelve gunny bags, mixed together into an admixture and thereafter, two samples were taken from that admixture; this fact gets further corroboration from Exhibit P-28 the FSL Report wherein it is confirmed that only one sample of poppy husk and one sample of opium were received by the FSL for testing.

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The accused-appellants are behind the bars since more than three years in total and the hearing of appeal is likely to take further more time, therefore, considering the overall submissions and looking to the totality of facts and circumstances of the case while refraining from passing any comments on the niceties of the matter and the defects of the prosecution as the same may put an adverse effect on hearing of the appeal, this court is of the opinion

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(6 of 7)

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[SOSA-136/2022]

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that it is a fit case for suspending the sentence awarded to the accused appellants.

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Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Special Judge (N.D.P.S. cases)No.2, Chittorgarh, vide judgment dated 27.10.2021 in Sessions Case No.195/2014 against the appellant-applicants Harpal Singh S/o Baba Singh and Richapal Singh S/o Avtar Singh Sikh Jaat shall remain suspended till final disposal of the aforesaid appeal and they shall be released on bail provided each of them 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 their appearance in this court on 15.01.2023 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

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

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That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.

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

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The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicants were tried and convicted. A copy of this order

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(7 of 7)

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[SOSA-136/2022]

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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 applicants does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.

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(FARJAND ALI),J

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93-Anshul/-

Harpal Singh v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Harpal Singh v. State of Rajasthan

Case brief

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What did the court decide?

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