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2024 DIGILAW 435 (RAJ)

Hajari Lal v. Union of India

2024-03-11

ASHOK KUMAR JAIN

body2024
ORDER : Mr. Ashok Kumar Jain, J. - Instant 2nd suspension of sentence application is preferred in pending appeal which was filed aggrieved from order of conviction and sentence dated 01.06.2022 in sessions case No. 128/2015 passed by learned Special Judge (NDPS Cases), Jhalawar whereby appellant-accused Hajari Lal was convicted under Section 8/19 and 8/26 of NDPS Act and further sentenced to undergo rigorous imprisonment of 10 years with fine of Rs. 1,00,000/- and rigorous imprisonment of 3 years with fine of Rs. 10,000/- respectively. 2. Learned counsel for petitioner has submitted that the learned Trial Court without considering the compliance of mandatory provision of Rule 17 and 18 of NDPS Rules, 1985 has convicted the appellant-accused under Section 8/19 of NDPS Act. He submitted that Rule 18 provides that sealed opium should be opened and sample be drawn in presence of cultivator, but in the instant case no notice was served upon cultivator and the sample was drawn in his absence, therefore, due to non-observance of Rule 18 the conviction is liable to be set aside. He specifically relied upon order dated 27.01.2023 in S.B. Criminal Misc. Suspension of Sentence Application No. 385/2022 in S.B. Criminal Appeal No. 558/2022 titled as Ramesh v. Union of India, wherein a co-ordinate Bench has allowed suspension of sentence application of Ramesh son of Dhunni Lal. 3. Aforesaid contentions were opposed by learned Special Pubic Prosecutor on the ground that this is a case of embezzlement and non-compliance in terms of cultivators by the appellant-applicant, therefore, he is not entitled for any relief whatsoever. He also submitted that Rule 18 is just a directory rule and not a mandatory rule, therefore, the appellant is not entitled for any kind of relief. He also submitted that at the time of weighing the appellant-applicant fled away from the spot and he was not present on the spot, therefore, sample cannot be drawn in his presence. 4. Heard learned counsel for appellant and learned Special Public Prosecutor. Also perused the record. 5. On 10.08.2023, this Court has considered the argument of present appellant and dismissed the first suspension of sentence application. The grounds raised by learned counsel were exactly same and certain portion of the order is reproduced as under: "The allegation on present appellant is that in year 2011-12 after obtaining a license for cultivation in 3500 square mtr. 5. On 10.08.2023, this Court has considered the argument of present appellant and dismissed the first suspension of sentence application. The grounds raised by learned counsel were exactly same and certain portion of the order is reproduced as under: "The allegation on present appellant is that in year 2011-12 after obtaining a license for cultivation in 3500 square mtr. area appellant cultivated opium in 3612 square mtr. and instead of 6 kg net produce of opium, 8.480 kg. (Adulterated) opium was deposited and same was found to be adulterated, therefore, the appellant was charged in violation of rule or order made there under. Learned trial court in its order dated 14.10.2015 while considering submission of present appellant at the stage of charge, considered the fact that in presence of lamberdar, the opium so submitted was weighted and sealed. As regard to evidence of prosecution is concerned, present appellant was granted license to cultivate opium and this fact was not denied by appellant during trial as per evidence of PW1. A total 6 kg opium was submitted by appellant from 01.03.2012 to 23.03.2012 and same was received by Babulal and which was found to be good. PW1 further stated that in plastic containers appellant deposited opium of 2.440 kg, which was found adulterated. When sample out of aforesaid was taken then present appellant Hajari Lal ran away from centre. Thereafter, in presence of PW4 (Lambardar) Babulal, sample was taken and remaining container was seized. It was admitted by PW1 that when sample was taken appellant Hajari Lal was not present on the spot. The statement of PW1 clearly indicated that after handing over the sample, Hajari Lal ran away from centre. PW4 Babulal further deposed in chief that opium of 2.440 kg after found doubtful. A sample was taken and he proved the fact that container and sample were seized in his presence. During cross examination no specific question was asked to contradict that opium does not belong to appellant. PW5 Balwant Singh Jain was the person who checked this opium and when asked about presence of appellant then he admitted that appellant was not there but he made it clear that appellant fled from the centre. During cross examination no specific question was asked to contradict that opium does not belong to appellant. PW5 Balwant Singh Jain was the person who checked this opium and when asked about presence of appellant then he admitted that appellant was not there but he made it clear that appellant fled from the centre. Aforesaid evidence clearly indicated that at the time of delivery of opium produced when it was weighted and examined in presence of PW4 (Lambardar) Babulal and appellant, before sample was taken and sealed, appellant voluntarily escaped from the spot." 6. Rule 18 of NDPS Rules, 1985 provides for drawing of samples from opium sent to Government Opium Factory in the presence of the cultivator, if so desires, to whom, a notice intimating the date and time in this behalf, shall be sent well in advance. Chapter III of NDPS Rules, 1985 provides for opium poppy cultivation and production of opium poppy straw. Rule 5 to Rule 30 specifically provides for cultivation and production of opium and poppy straw, Rule 10 provides that the District Opium Officer may designate one or more cultivators of opium poppy as Lambardar in each village, where licence has been issued for cultivation of opium extracting juice by lancing the opium poppy. Rule 12 provides for procedure with regard to measurement of land cultivated with opium poppy whereas Rule 13 provides for procedure with regard to preliminary weighment. Rule 14 provides for delivery of opium produced and Rule 15 provides for opium to be weighed and examined and classified, Rule 16 provides for procedure where cultivator is dis-satisfied with classification of opium. Rule 17 provides for procedure for sending opium suspected to be adulterated. Rule 18 provides for drawing of a sample from opium sent to Government Opium Factory under Rule 16 or Rule 17. Rule 14 to Rule 18 are reproduced as under: "14. Delivery of opium produced.-All opium, the produce of land cultivated with opium poppy, shall be delivered by the cultivators to the District Opium 66 The Narcotic Drugs and Psychotropic Substances Rules, 1985 [Rule 14 Officer or any other officer duly authorised in this behalf, by the Narcotics Commissioner at a place as may be specified by such officer. 15. Delivery of opium produced.-All opium, the produce of land cultivated with opium poppy, shall be delivered by the cultivators to the District Opium 66 The Narcotic Drugs and Psychotropic Substances Rules, 1985 [Rule 14 Officer or any other officer duly authorised in this behalf, by the Narcotics Commissioner at a place as may be specified by such officer. 15. Opium to be weighed, examined and classified.-All opium delivered by the cultivators to the District Opium Officer or any other officer authorised as aforesaid, shall, in the presence of the concerned cultivator or any person authorised by him and the Lambardar of the village, be weighed, examined and classified according to its quality and consistence and forwarded by the District Opium Officer to the Government Opium Factory in such manner as may be specified by the Narcotics Commissioner. 16. Procedure where cultivator is dissatisfied with classification of opium.-Any cultivator who may be dissatisfied with the classification of his opium done by the officer referred to in rule 15 may have it forwarded by such officer to the Government Opium Factory separately, after having it properly sealed in his presence and in the presence of the concerned Lambardar. 17. Procedure for sending opium suspected to be adulterated.- When opium delivered by a cultivator to the District Opium Officer or any other officer authorised in this behalf, is suspected of being adulterated with any foreign substance, it shall be forwarded to the Government Opium Factory separately, after it is properly sealed in the presence of the cultivator and the concerned Lambardar. 18. Drawing of samples from opium sent to Government Opium Factory under rule 16 or rule 17.-The sealed opium received separately in accordance with rule 16 or rule 17, shall be opened and sample drawn thereof in the presence of the cultivator, if he so desires, to whom, a notice intimating the date and time in this behalf, shall be sent well in advance." 7. The fact in the matter clearly indicate that a date was fixed for drawing sample as 05.04.2012, when appellant-applicant Hajari Lal was present before District Opium Officer and Lamberdar, as his produce was suspected to be adulterated, suddenly Hajari Lal after leaving the container disappeared from the centre. In the presence of Lamberdar sample of 50 gram was taken and the opium was sealed. Total 8.480 Kgs opium was recovered and it was suspected to be adulterated. In the presence of Lamberdar sample of 50 gram was taken and the opium was sealed. Total 8.480 Kgs opium was recovered and it was suspected to be adulterated. 8. Aforesaid provisions from Rule 16 to 18 clearly indicate only requirement was for notifying a date from drawing a sample and when anyone remained absent or fled from the spot leaving his/her opium unattained does not mean that the sample cannot be drawn. A combined reading of Rule 16 to 18 clearly indicated that drawing of sample under Rule 18 is resorted when either cultivator is dis-satisfied from classification or where opium suspected to be adulterated. Herein the instant case, the opium brought by present appellant was suspected to be adulterated and a day of 5th April was notified for drawing sample. 9. Thus, in the instant case the evidence on record was quite clear which established the fact that the provision was for notifying a date and nothing more than this. Herein, the rule was fully observed and moreover after discharging initial burden, a presumption under Section 35 and 54 of NDPS Act is against the accused, therefore, he has to discharge the burden. Herein, the judgment of the Trial Court clearly indicate that the appellant-accused was well-aware about the notification of date for drawing the sample. The Co-ordinate Bench has not considered the issue in light of the fact as mentioned hereinabove. Moreover, the mandate was for only notification or intimation but not more than this. 10. Herein, it was well-established that the sample was drawn on specific notified date and collection of sample, thereafter was within domain of the District Opium Officer or other officer authorized in this behalf, even the cultivator remained absent. Moreover, Rule 16 to 18 are used only in cases of suspected adulteration in the opium, thus the bona fides of appellant cannot be presumed in such cases on the basis of material on record. 11. Therefore, the order dated 27.01.2023 is not applicable in the instant case. Hence, the applicant is not entitled to be released on bail. 12. Thus, Second Suspension of Sentence Application is hereby dismissed.