Allowed

Kishan Lal S/O Shri Bherulal, v. State of Rajasthan

Rajasthan HC4 Mar 2024SOSA/94/2024

Case brief

AI extract

What is this about?

High Court allowed suspension of sentence under Section 389 Cr.P.C. in a conviction under NDPS Act where mandatory Section 52-A compliance regarding weighing and sampling was not fulfilled, releasing the applicant on bail pending appeal.

What did the court decide?

Sentence suspended; applicant released on bail with a personal bond of Rs.50,000/- and two sureties of Rs.25,000/- each, subject to conditions of appearance and address reporting.

Kishan Lal S/O Shri Bherulal, Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2024)

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[2024:RJ-JP:11036]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Misc Suspension Of Sentence Application

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No.94/2024

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S.B. Criminal Appeal No.2427/2022

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Kishan Lal S/o Shri Bherulal, Aged About 41 Years, R/o Rajpura, Police Station Karoi, District Bhilwara (Raj) (At Present Confined In Central Jail Jaipur)

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----Accused-Applicant

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Versus

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State Of Rajasthan, Through P.p.

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----Respondent

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For Applicant(s)	: Mr. VinayPal Yadav
For Respondent(s)	: Mr. Imran Khan, PP

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HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Order 04/03/2024

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The accused-appellant herein has been convicted and sentenced vide judgment dated 24.05.2022 passed by the Special Judge NDPS Act Case Jaipur Metropolitan-I in Sessions Case No.14/2016 as under:-

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Offence Under	Imprisonment	Fine	Sentence in
Section			default of fine
8/18 NDPS Act	10years’ R.I	Rs.100,000/-	01year R.I

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Learned counsel for the accused-applicant submits that applicant has been wrongly convicted under Section 8/18 of the NDPS Act. The mandatory provisions of Section 52 -A of the NDPS Act was not complied with and further the net weight of the contraband article seized from the applicant was not recorded by the Seizure Officer PW-11 (Surendra Singh). He further submits that as per the the prosecution story, the gross weight of

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containerKishan Lal S/o Shri Bherulal, along with Opium Milk was taken at the time of the possession. Learned counsel for the applicant further submits that the commercial quantity of Opium Milk is 2.5 Kg, therefore, in absence of net weight of Opium Milk solely on the basis of gross weight of Opium Milk with the plastic container, It cannot be said that accused-applicant was carrying commercial quantity of the contraband article with him. He further submits that the recovered contraband article was packed in clothes whereas, when the article was produced before the Trial Court, it was found to be packed with polythene, therefore, the chances of tempering with the samples is not ruled out. He further submits that there is no criminal antecedents of the present accused-applicant. The accused-applicant is in custody for a period of three years and eleven months and the listing of the appeal will take considerable time. Therefore, the application for suspending the sentence of the accused-applicant may be allowed.

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Learned counsel for the accused-applicant has placed reliance on the judgment passed by this Court in the case of Roop Singh Vs. State of Rajasthan in S.B. Criminal Appeal No.306/1995 decided on 15.01.1996; Simranjit Singh Vs. State of Punjab reported in 2023 Livelaw (SC) 570 and Mangilal Vs. The State Of Madhya Pradesh reported in 2023 Livelaw (SC) 549.

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Per contra, learned Public Prosecutor has vehemently opposed the application for suspending the sentence of the present accused-applicant.

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Learned Public Prosecutor argues that the accused-applicant has been rightly convicted under Section 8/18 of the NDPS Act. Learned Trial Court in a judgment has assigned cogent reasons

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Sessions Case No.279/2021 regarding difference in the recovered net weight of the Opium Milk and opined that the weight of the container from which the Opium Milk was recovered may be 250 to 350 grams. Therefore, it cannot be said that the Opium Milk recovered from the present accused-applicant was below commercial quantity. He fairly submits that proceedings under Section 52-A of NDPS Act was not conducted.

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Learned Public Prosecutor has prayed for dismissing the application for suspension of sentence.

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Heard and perused the record.

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As per the prosecution story, on 23.03.2016 at 5:30 AM in routine checking, the accused-applicant- Kishan Lal was checked by Police and he was found in possession of plastic container having 3 Kg of Opium Milk. The seizure memo (Exhibit P-7) shows that separate weight of Opium Milk was not taken and weight of container along with Opium Milk was taken. PW-11 Surendra Singh in his examination-in-chief has also stated that gross weight of container along with the Opium Milk weight was taken at the time of recovery. Thus, from the seizure memo and statement of PW-11 Surendra Singh, it is apparent that gross weight of Opium Milk along with the plastic container and no net weight of the Opium Milk was taken at the time of preparing seizure memo.

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In the matter of Mangilal Vs. State of Madhya Pradesh (Supra) wherein, Hon’ble Apex Court has categorically held that compliance of Section 52-A of the NDPS Act is mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples

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drawn. It was further held that before proposed disposal or destruction of any contraband article mandate of Section 52-A of the NDPS Act requires to be duly complied with in starting, with an application to that effect.

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The Apex Court in the aforesaid case was of the view that the onus is entirely of the prosecution to satisfy the Court when such an issued arises for consideration.

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In the matter of SimranJeet Singh Vs. State of Punjab (Supra), the Apex Court while drawing attention towards Section 52-A of the NDPS Act was of the view that entire exercise of collecting the samples must be certified by the Magistrate.

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In the case of Union of India Vs. Mohanlal reported in (2016) 3 SCC 379, the Apex Court has categorically held that compliance of Section 52-A of the NDPS Act is mandatory.

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From perusal of the record, it is apparent that in the present case, provisions of Section 52-A of the NDPS Act was not complied with. The factual report, regarding present accused-applicant, shows that there are no criminal antecedents of the present accused-applicant. The accused-applicant is in custody for a period of three years and eleven months.

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In view of the above and taking into consideration the fact that the accused-applicant has already undergone custody almost three years and eleven months and listing of the appeal may take considerable time, without expressing anything on merits of the case, I deem it just and proper to suspend the sentence of the present accused-applicant.

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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 Special Judge NDPS Act Case Jaipur Metropolitan-I vide impugned judgment dated 24.05.2022 in Sessions Case No.14/2016 against the accused-applicant Kishan Lal S/o Shri Bherulal, 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 04.04.2024 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-applicant(s) was/were 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(s) does not appear before the trial

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court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.

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(PRAVEER BHATNAGAR),J

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Brijesh/Keshav/13

Kishan Lal S/O Shri Bherulal, v. State of Rajasthan

Case brief

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What did the court decide?

Kishan Lal S/O Shri Bherulal, v. State of Rajasthan

Case brief

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