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2023 DIGILAW 160 (RAJ)

Ramzan v. State of Rajasthan

2023-01-12

FARJAND ALI

body2023
JUDGMENT : Farjand Ali, J. Heard learned Counsel for the accused appellant and learned Public Prosecutor on the application for suspension of sentence and perused the Judgement impugned dated 28.6.2022 passed by Special Judge (N.D.P.S. cases), Bharatpur in Sessions case No. 38/2019 (CIS-42/2019) whereby the accused appellant has been convicted for the offence punishable under Section 8/20(b)(II)(c) of NDPS Act, 1985 and has been sentenced with maximum of Eleven years rigorous imprisonment along with fine of Rs. 1,00,000/-. 2. Learned Counsel for the accused-appellant submits that the Trial Court has grossly erred in convicting and sentencing the accused-appellant. Learned Counsel for the petitioner submits that a false case has been foisted against the petitioner. Section 2 of the NDPS Act contains the definitions and clause (III) of the same defined what "cannabis (hemp)" means through three sub-clauses. The sub-clause (b) of clause (iii) defines 'ganja' as "the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated." He avers that, for the purpose of determining the total weight of the recovered contraband ganja, the whole plants were taken into consideration, including the seeds, leaves, roots and stems whereas only the flowering or fruiting tops of the cannabis plants should have been taken into consideration for weighing of contraband ganja as per the defining clause under NDPS Act. The other - annexures liked stem, leaved and roots are neutral substances. Upon search, one plastic bag was found in the car from his possession which contained 9 small packet of alleged contraband. The two samples of 100 grams each, marked A (chemical sample) and B (control sample), were taken from the seized contraband contained in the 9th small bag only for investigation. The samples of contraband were not collected individually from the nine small bags for investigation as per the stipulations in the Standing Instruction No. 1/89 issued by the N.C.B., New Delhi. As individual weight of all the packets is known and samples from each of the nine small bags were not drawn for testing, it cannot be said with utmost certainty that each of the small bags contained ganja and that the quantity of the recovered contraband in 38.300 kilograms. As individual weight of all the packets is known and samples from each of the nine small bags were not drawn for testing, it cannot be said with utmost certainty that each of the small bags contained ganja and that the quantity of the recovered contraband in 38.300 kilograms. The appellant has spent last 4 years and 3 months in custody, if he is not released on bail the very purpose of filing the appeal would be frustrated. He places reliance on the judgment dated 27.8.2022 passed by this Court in S.B. Criminal Miscellaneous II Bail Application No. 12906/2022 titled as Suraj v. State of Rajasthan as well as on the judgment passed by Hon'ble the Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation reported in (2021) 10 SCC 773 to support his argument that looking to the long period of incarceration, the sentence of the applicant deserves to be suspended. As the hearing of the appeal will take long time to conclude, therefore, learned Counsel for the appellant submits that the sentence awarded to the accused appellant may be suspended. 3. Learned Public Prosecutor vehemently opposes the prayer made by learned Counsel for the accused-appellant and submits that the matter pertains to recovery of 38.300 kilograms of Ganja and the judgment of conviction passed by learned Court below does not warrant any interference. As per the custody certificate submitted by learned Public Prosecutor, the petitioner has suffered imprisonment for almost 4 years and 3 months. 4. From perusal of the seizure memo, it is appearing that the total weight of recovery has been mentioned which includes the weight of leaves, stalks and stems. As per the definition given in the N.D.P.S. Act, only flowering and fruiting tops of hemp (cannabis plant) come within the definition of 'Ganja'. 5. After careful scanning of the record and consideration of the submission, it is observed that it cannot be presumed without solid evidence that all the bags were containing 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. 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 sample has been collected from one bag only, the same sample cannot be a representative of all the other bags and it cannot be ascertained beyond reasonable doubt that the other bags also contained contraband on the basis of presumption. 6. This Court is cognizant of the provisions contained in Section 32-A and Section 37 of the NDPS Act but considering the submissions made by learned Counsel for the accused-appellant regarding non-compliance of statutory procedure and keeping in mind the fact of subjection of accused to long period of incarceration pending appeal, this Court is of the opinion that it is a fit case for suspending the sentence awarded to the accused appellant. 7. 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 13.6.1989 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:- "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. Clauses 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 52A of N.D.P.S. Act are of relevance to the present set of facts and are as follows : 2.1 All durgs 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 invariable be made in the panchnama drawn on the spot. 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 invariable be made in the panchnama drawn on the spot. 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 representative before the sample (in duplicate) is drawn. 2.4 In the case of seizure of a single package/container, one sample in duplicate shall be dran. Normally, it is advisable to draw one sample (In duplicate) from each package/container in case of seizure of more than one package/container. 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 ail 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. 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. 2.7 If such remainder is 5 or more in eh 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 packagee/container. 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. 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. 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 should have been collected for investigation it is an act of utmost recklessness and irresponsibility that even after collected for investigation. It is an act of utmost recklessnesss 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 emgargo contained under Section 37 of the NDPS Act is not attracted." 8. Here, in this case as well, the alleged seized contraband contained in each of the smaller 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 and Section 32-A of NDPS Act would not be attracted. 9. The accused-appellant is behind the bars since almost 4 years and 3 months 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 that it is a fit case for suspending the sentence awarded to the accused appellant. 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), Bharatpur vide judgment dated 28.6.2022 in Sessions Case No. 38/2019 against the appellant-applicant Ramzan Son of Mumtaz Manihar 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 24.2.2023 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- 1. That he/she/they will appear before the Trial Court in the month of January of every year till the appeal is decided. 2. 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. 3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the Trial Court. 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 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 does not appeal before the Trial Court, the learned Trial Judge shall report the matter to the High Court for cancellation of bail.