RAJNISH UPADHYAY S/O VIRENDRANATH UPADHYAY Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Heard on application (I.A. No. 01/2021) under Sec. 389 CrPC for suspension of sentence.

(2.) By the impugned judgment dtd. 30/10/2021, passed by Special Judge (NDPS Act) Raigarh (CG) in Special Criminal Case (NDPS Act) No. 06/2021, the appellants stand convicted and sentenced as under:-

(3.) Learned counsel for the appellants would submit that the trial Court without appreciating the Standing Order No. 1/89 dtd. 13/6/1989 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 counsel for the appellants has drawn the attention of this Court towards sec. 2 of the Standing Order which deals with the general procedure for sampling, storage, etc. He 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, the Investivating Officer PW/11 in his examination-in-chief at paragraph 10 has stated before the Judicial Magistrate First Class that the contraband seized in 20 packets were found 80 Kg in weight. The same were mixed, thereafter, samples 100-100 gram each have been prepared. In support of his submission, he would further draw the attention of this Court towards the judgment passed by the Hon'ble Supreme Court in the case of Union of India vs. Bal Mukund and others (2009) 12 SCC 161. He would further submit that again the Hon'ble Supreme Court in the case Union of India vs. Mohanlal and Another (2016) 3 SCC 379 has examined the 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 counsel 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, in CRLA No. 1027 of 2015 decided on 13/3/2020 wherein the Divison 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 the Hon'ble 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 of the appellants may be considered and the appellants be released on bail.