9911796707
TMI Blog2023 (5) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... suant to secret information received on 2nd April, 2018 at about 7:30pm, one NCB team was constituted which apprehended one Zimbabwean lady on 2nd April, 2018 at about 8:30 pm at Terminal 1D, IGI Airport, New Delhi, who was going to board 9:40 pm IndiGo Flight No. 6E-505 inbound to Goa and on search of her baggage, two polyethene were recovered in each cavities containing crystalline substance. The colour, texture and property of material from both concealments were the same and each concealment was tested separately which gave positive results for Methamphetamine. After the testing, the contraband was mixed and transferred into a transparent polythene and the total weight was 3kg. Two samples of 5gm each were taken from the mixed substance, thereafter, the appellant's statement under section 67 NDPS Act was recorded. CRCL report dated 18th April, 2018 confirmed the crystalline substance to be Methamphetamine. A total of 12 witnesses were examined. 3. Learned counsel for the appellant has relied upon the following decisions of the Hon'ble Supreme Court and various other Courts where similarly placed convicts have been released on regular suspension of sentence despite having been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court had noted that the appeal is unlikely to be heard early and given the pendency of the work it may not be feasible to expedite the disposal of the appeal within a short period. Accordingly, the sentence of the appellant in that matter was suspended. Also in the following decisions of the Coordinate Benches of this Court, relying inter alia on the decision of Daler Singh v. State of Punjab (2006) SCC OnLine P&H 1591, this Court has granted suspension of sentence even in cases where the petitioner was a foreign national and had been convicted under the NDPS Act: Chinazor Festus Mbalugh v. Narcotics Control Bureau, Crl. Appeal No. 76 of 2020, decision dated 01st March, 2021; Paul Chinedu Ugwar v. State (NCT of Delhi), Crl. Appeal No. 448/2015, decision dated 23rd February 2021; Simon Onome Umukoro v. The State, Cri. Appeal No. 754/2014, decision dated 4th February 2020; Nisha @ Putalya v. State NCT of Delhi, Crl. Appeal No. 110/2017, decision dated 2nd March 2020; Mohd. Arif @ Guddu v. State NCT of Delhi, Crl. Appeal No. 293/2017, decision dated 19th May 2020; Chidiebere Kingsley Nawchara v. Narcotics Control Bureau in Crl. Appeal No. 350/2020 decision dated 26th May, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckage and test each of the sample with the „field testing kit‟. It is further provided that if the container/packages are identical in shape, size and weight then lots of 10 or 40 containers/packages may be prepared and thereafter representative samples from each container/package in a particular lot are to be drawn, mixed and sent for testing. 17. Mixing of the contents of container/package (in one lot) and then drawing the representative samples is not permissible under the Standing Orders and rightly so since such a sample would cease to be a representative sample of the corresponding container/package. 18. In the present case, four packets containing suspicious powdery substance were found concealed in a „stroller bag‟. On testing with the „field testing kit‟, the powder in each packet tested positive for heroin. The I.O., without weighing the contents of each individual packet, mixed the powder from all the 4 packets in one polythene bag and then drew the sample from the mixture. 19. In the opinion of this court, the respondent ought to have adopted the procedure outlined in Para 2.4 of the Standing Order 1/89 [or para 1.7(a) of Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g at the time of seizure, it may be worthwhile to deliberate upon the various authorities often cited in this regard. The issue that arises in this matter is of defect in the sampling procedure adopted by the investigating officer at the time when recovery and seizure, in this case, is effected. While the accused submit that the procedure for the sampling of seized materials is not in accordance with the mandate of the Standing Order No. 1/88 issued by the Narcotics Control Bureau and Standing Order 1/89 issued by the Ministry of Finance, Government of India, it is contended by the prosecution that these issues are a matter of trial as also that the Standing Orders are not mandatory but directory in nature. Yet another issue that arises is whether sampling ought to be done at the time of seizure or later in accordance with provisions of section 52A NDPS Act before the Magistrate. To fully unravel these contentions, it would be apposite to appreciate and assess the Standing Order being referred to, the context and purpose for which they were issued, and the decisions of various courts in this regard. 13. The manner of drawing a sample of narcotics has been laid down in Standing Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r compliance of the Vigilance Department, but substantial compliance therewith was necessary, even if the same were not imperative in character. A departmental instruction cannot totally be ignored. The Tribunal was entitled to take the same into consideration along with other materials brought on record for the purpose of arriving at a decision as to whether normal rules of natural justice had been complied with or not." 89. Guidelines issued should not only be substantially complied, but also in a case involving penal proceedings, vis-a-vis a departmental proceeding, rigours of such guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefor, it becomes obligatory on the part of the subordinate authorities to comply therewith. 90. Recently, this Court in State of Kerala and Ors. v. Kurian Abraham (P) Ltd. (2008) 3 SCC 582 following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan (2004) 10 SCC 1held that statutory instructions are mandato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative." (emphasis added) 17. In Santini Simone v. Department of Customs, 2020 SCC OnLine Del 2128 this Court acquitted the accused observing that the instructions contained in Standing Order No. 1/89 was not followed and it held as under: "63. Concededly, in the present case the instructions contained in Standing Order No. 1/89, was not followed. 64. In Khet Singh v. Union of India: (2002) 4 SCC 380, the Supreme Court had, in the context of similar instructions issued (Standing Order 1/88) by the NCB, New Delhi, held that the same were to be followed by the Officer-in-charge of the investigation of crimes fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion of this court, the procedure adopted by the respondent in the present case for drawing samples neither conforms to the procedure prescribed under Section 52A of NDPS Act nor under the Standing Orders. At the cost of repetition, the respondent neither filed any application before the Magistrate for drawing the samples under his supervision nor followed the procedure of drawing a representative sample outlined in paras 2.4 or 2.5 read with 2.8 of the Standing Order 1/89. 33. Resultantly, this court is of the view that the samples sent to the CRCL were not the representative samples. Besides, by mixing the contents of all the 4 packets before drawing any sample not only the sanctity of the case property in the individual packet was lost but also the evidence as to how much each individual packet weighed. In reaching the aforesaid conclusion, I also draw support from the decisions in Shajahan v. Inspector of Excise (DB) reported as 2019 SCC OnLine Ker 3685 Kulwinder Kumar v. State of Punjab, reported as 2018 SCC OnLine P&H 1754 and Santosh Kumar v. The State of Bihar passed in Criminal Appeal (SJ) No.158/2016 decided on 30.08.2019." (emphasis added) 19. More recently, a Coo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the police. Further, it is the say of the Panch witness that muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW 2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy husk." (emphasis added) 21. The apparent conflict in the manner of drawing a sample as provided in Section 52A(2)(c) of NDPS Act and the Standing Order 1/89 came to be considered by the Hon'ble Supreme Court in Union of India v. Mohanlal, (2016) 3 SCC 379 where it was held as under: "31. To sum up we direct as under: 31.1. No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52- A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n logic which ought to be respected, or else it would be a worthless piece of paper. Notwithstanding that Courts in the decisions cited above have accepted it as a mandatory directive [refer to Noor Aga (supra), Bal Mukund (supra), Basant Rai (supra) Santini Simone (supra) and finally Amani Fidel (supra)], even the Hon'ble Supreme Court while taking a view that Section 52 & Section 57 NDPS were directory in Gurbax Singh (supra) said that "the IO cannot totally ignore these provisions". Even Balbir Singh (supra) states that noncompliance does not render the trial initiate "the officers, however, cannot totally ignore these provisions". Therefore, in this Court's view, the Standing Orders ought to be respected by the investigating agencies and non-compliance of those Standing Orders may naturally invoke a reasonable doubt relating to the process of sampling which is the most critical procedure to be carried out in order to ascertain the nature of the substance and its quantity. In fact, the Field Officers Handbook issued by the Narcotics Control Bureau for Drug Law Enforcement also reiterates these procedures prescribed under the Standing Orders. 24. As a side-wind, it is worth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el (supra)], a fortiori at the stage of granting bail, it would be even more important to consider this possibility, even if it is just a possibility. 27. In this case, besides the fact that the appellant may have a case to argue on the issue of defective sampling at the time of seizure, the appellant has also undergone a substantial period of sentence and the appeal is likely to take some time for hearing. In view of the directions of the Hon'ble Supreme Court in Sonadhar v. The State of Chhattisgarh, SLP (Crl.) 529/2021 vide order dated 6th October, 2021, as well as Saudan Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 3259 (where the Hon'ble Supreme Court has stated that in cases other than life sentence cases the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail), this Court deems it fit to suspend the sentence of the appellant. It is therefore directed that the sentence of the appellant be suspended pending the hearing of the appeal, on furnishing a personal bond in the sum of Rs.1,00,000/- with one surety bond of the like amount, subject to the satisfaction of the learned Trial Court/ CMM/ Duty Magistrate, further subject ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
