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2024 DIGILAW 630 (PAT)

Suresh Das @ Suresh Das Tatwa v. Union of India

2024-07-11

ALOK KUMAR PANDEY, P.B.BAJANTHRI

body2024
P. B. Bajanthri, J.— I.A. No.01 of 2023 arising out Criminal Appeal (DB) No.201 of 2021: Brief facts of the case: The present Interlocutory Application (I.A. No.01 of 2023) is filed by the appellant Suresh Das @ Suresh Das Tatwa under Section 389(1) of the Code of Criminal Procedure for suspension of sentence and his release on bail during the pendency of the Criminal Appeal (DB) No.201 of 2021 filed by him. He is convicted for the offence punishable under Section 20(b)(ii)C of the NDPS Act and sentenced to undergo R.I. for a term of Twelve Years and fine of Rs.1,00,000/- (One Lac) and in default of payment of fine to undergo further Imprisonment for a period of Two Years. 2. Pursuant to the complaint dated 14.01.2018 at about 13:00 P.M, appellant was intercepted by S.S.B. Narkatiaganj at Pachrauta in District-West Champaran and recovered 4.50 kilogram of Charas. Based on this information, the Zonal Director, NCB, Patna, formed a team of NCB, Patna and, thereafter, the team departed from Patna to the place of occurrence. The Inspector of SSB Naresh Kumar narrated the occurrence. The seized substance was sealed with departmental seal and signatures of Seizing Officer, independent witnesses, the Inspector of SSB Naresh Kumar and Suresh Das @ Suresh Das Tatwa (appellant) were obtained on all the sealed packets. The Seizure List and Test Memo were prepared on the spot. Notice under Section 67 of the NDPS Act was served to the appellant and his statement was recorded so also the statements of two independent witnesses were recorded. The appellant along with the seized contraband and samples were produced before the District and Sessions Judge-cum-Special Judge, NDPS Act, West Champaran, Bettiah, on 15.01.2018. Seized contraband and duplicate samples were deposited in NCB Malkhana on 15.01.2018. The sample was stated to have been dispatched to C.R.C.L. Kolkata for its chemical examination. Thus, the appellant, who is alleged to have involved in trafficking Charas from Nepal to India, was subjected to trial. The trial concluded in sentencing him as under:— “The accused/convict Suresh Das @ Suresh Das Tatwa is here by sentenced to undergo R.I. for a term of Twelve Years and fine of Rs.1,00,000/- (One Lac) U/Sec.20(b)(ii) C of the NDPS Act and in default of payment of fine he shall further be sentenced to undergo Imprisonment for a period of Two Years.” 3. Appellant has questioned the validity of sentence in Criminal Appeal (DB) No.201 of 2021 under Section 374(2) of Cr.P.C. On 06.08.2021, it was admitted. State was asked to file written show cause reply to the application preferred under Section 389(1) of Cr.P.C. on behalf of appellant. On 26.10.2021, Co-ordinate Bench declined to grant bail on the score that 4.5 Kilogram Charas was recovered. In this backdrop, the appellant is in custody for the last about 6 years. In the month of June, 2023, I.A. No.01 of 2023 is filed. This is the 2nd application under Section 389(1) Cr.P.C. Appellant’s counsel submissions: 4. Learned counsel for the appellant submitted that the appellant has good case on merit in the Criminal Appeal (DB) No.201 of 2021 filed under Section 374(2) of Cr.P.C. and there are chances of his acquittal for the offence under Section 20(b)(ii)C of the NDPS Act. It is submitted that various provisions of NDPS Act has not been followed by the competent authorities. It is submitted that the appellant was not subjected to search before the Gazetted Officer or a learned Jurisdictional Magistrate and it is in violation of Section 50 of the NDPS Act. Similarly, sub-section 5 of Section 50 of the NDPS Act has not been followed. The Investigating Officer was not examined. It is alleged that 9 packets containing altogether 4.5 kilogram of Charas was stated to have been recovered, two samples have not been drawn from each of the packets and it is in violation of Section 52-A of the NDPS Act. It is also submitted that no inventory was prepared, certification of the same, keeping the substance in safe custody could not be legally proved. It is alleged that alleged incident took place on 14.01.2018, appellant was produced before the District and Sessions Judge-cum- Special Judge, NDPS Act, West Champaran, Bettiah on 15.01.2018, whereas inventory has been undertaken after lapse of 11 months, i.e., on 06.12.2018. No reason has been assigned as to why there is delay in respect of preparing/producing inventory before the Judicial Magistrate, First Class, West Champaran, Bettiah, within a reasonable period of time from the date of seizure of Charas. It is also alleged that certificate of destruction dated 12.04.2019 was not before the competent authority. No reason has been assigned as to why there is delay in respect of preparing/producing inventory before the Judicial Magistrate, First Class, West Champaran, Bettiah, within a reasonable period of time from the date of seizure of Charas. It is also alleged that certificate of destruction dated 12.04.2019 was not before the competent authority. Two witnesses, namely, K.V. Robinson Gangte, Superintendent/ Godown Incharge, NCB, Patna and M.K. Yadav, Havaldar, NCB, Patna, who were witnesses to the Inventory Certificate issued by the Magistrate under Section 52- A(3) of the NDPS Act, 1985 have not been cited as witnesses in the trial so also author of the Lab Certificate, who has determined the substance as Charas. These lacunae may lead to appellant’s acquittal for the offence under Section 20(b)(ii)C of the NDPS Act. Hence, the appellant is entitled for suspension of sentence and bail till final disposal of Criminal Appeal (DB) No.201 of 2021. Criminal Appeal (DB) No.201 of 2021 may take sometime to ripe for hearing. Therefore, in the interest of justice, appellant is entitled to aforementioned relief. Respondents’ counsel submissions: 5. Per contra, learned counsel for the respondents opposed the aforementioned contentions and submitted that there are no lacunae in the conviction order. He underscored the contention that the suspension of a sentence under Section 389(1) of the Cr.P.C. is to be granted as an exception and not a rule. To buttress his assertion, the suspension of sentence ought to be done only in a rare and exceptional cases, respondent has lent support to his contention. He has cited the following decisions in opposing the suspension of sentence and grant bail:— (a) State [NCT of Delhi] Narcotics Control Bureau vs. Lokesh Chadha [2021]5 SCC 724 (Paras-9, 10, 11). (b) Preet Pal Singh vs. State of Uttar Pradesh and Another [2020] 8 SCC 645 [: 2020 (5) BLJ 355 (SC)] (Para-35). (c) Dadu alias Tulsidas vs. State of Maharashtra [2000] 8 SCC 437 (Para-27,28, 29). (d) Ramesh Prasad vs. State of Bihar [Cr. Appeal (DB) No.231 of 2021 (Para-8 and 9)]. (e) Mossa Koya KP vs. State [NCT of Delhi] 2021 SCC OnLine SC 3110 [: 2022 (1) BLJ 438 (SC)] (Para-12). (f) Tara Singh and Others vs. Union of India and Others [2016] 11 SCC 335 [: 2016 (4) BLJ 43 (SC)] (Para-13). (d) Ramesh Prasad vs. State of Bihar [Cr. Appeal (DB) No.231 of 2021 (Para-8 and 9)]. (e) Mossa Koya KP vs. State [NCT of Delhi] 2021 SCC OnLine SC 3110 [: 2022 (1) BLJ 438 (SC)] (Para-12). (f) Tara Singh and Others vs. Union of India and Others [2016] 11 SCC 335 [: 2016 (4) BLJ 43 (SC)] (Para-13). Legal submissions have been made in paragraphs- 11 to 17 and 20 of the Objection filed on behalf of the Respondent- Union of India. Analysis: 6. Heard learned counsel for the respective parties. 7. Whether the appellant has made out prima facie case for granting suspension of sentence and bail under Section 389(1) of Cr.P.C. or not? 8. Granting of bail/suspension/stay of suspension of sentence is an exception and only in a rare cases depending upon the facts of the case. It has been taken note of by the Hon’ble Supreme Court in the case of Ravikant S. Patil vs. Sarvabhouma S. Bagali reported in (2007) 1 Supreme Court Cases 673. Similarly, while taking note of other decisions of the Hon’ble Supreme Court, in the latest decision in the case of Afjal Ansari vs. State of Uttar Pradesh reported in (2024) 2 Supreme Court Cases 187 decided on 14.12.2023, in other words, the principle is insofar as granting suspension of sentence or bail, it all depends on factual aspect of the concerned case. Ordinarily, the Court does not interfere in respect of suspension of sentence and bail arising out of NDPS Act matter in the light of Section 37 of NDPS Act. However, prima facie, there are legal lacunae as contended by the learned counsel for the appellant like as and when alleged Charas substance was seized by the Inspector, seizure and recording of statements are not before the Gazetted Officer or the Judicial Magistrate. Further, there is no explanation on behalf of the respondents as to why there is delay of about 11 months in getting inventory and certificate from the Judicial Magistrate, Bettiah, West Champaran, for the reasons that the alleged incident took place on 14.01.2018 and on 15.01.2018, appellant was produced along with the contraband before the District and Sessions Judge-cum-Special Judge, NDPS Act, West Champaran, Bettiah. Contraband was deposited in NCB Malkhana. No such explanation is forthcoming from the records. Author of the Certificate issued by the C.R.C.L. Kolkata was not subjected to examination or cross-examination. Contraband was deposited in NCB Malkhana. No such explanation is forthcoming from the records. Author of the Certificate issued by the C.R.C.L. Kolkata was not subjected to examination or cross-examination. Prima facie, these lacunae/procedural lapses may lead to acquittal of the appellant. The fact that the present appeal is of the year 2021, for final disposal it may take years together due to pending backlog cases. Therefore, prima facie, appellant has made out a case. The cited decisions on behalf of the respondents may not assist the respondents for the reasons that it all depends on each and individual case like facts of the case and procedures and relevant laws have been adhered or not. 9. The Hon’ble Supreme Court in the case of Jitendra and another vs. State of M.P., reported in 2004 Supreme Court Cases (Cri) 2028 has observed in paragraphs-5 and 6 as under:— “5. The evidence to prove that charas and ganja were recovered from the possession of the accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW 7), Angad Singh (PW 8) and Sub-Inspector D.J. Rai (PW 6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial court, so as to connect them with the samples sent to the Forensic Science Laboratory. There is no material produced in the trial, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were taken from the drugs seized from the possession of the accused. Although the High Court noticed the fact that the charas and ganja alleged to have been seized from the custody of the accused had neither been produced in the court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the Chemical Examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, “non-production of these commodities before the court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced.” The High Court relied on Section 465 CrPC to hold that nonproduction of the material object was a mere procedural irregularity and did not cause prejudice to the accused. 6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. …….” In the present case, as is evident from the list of documents, seized charas material has not been produced before the court and the same has not been marked. In fact, taking note of the samples from 9 packets, they have collected two samples, quantity of 50 grams of the drug (charas) whereas samples have not been drawn from each of the 9 packets. 10. Learned counsel for the respondent has cited 6 Judgments in opposing the suspension of sentence and bail, which are cited supra, in Lokesh Chadha case, in paragraph-9, the principle is that the High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act. 10. Learned counsel for the respondent has cited 6 Judgments in opposing the suspension of sentence and bail, which are cited supra, in Lokesh Chadha case, in paragraph-9, the principle is that the High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act. In Preet Pal Singh case, an observation has been made that strong compelling reasons for grant of bail must be recorded in the order granting bail, as mandated in Section 389(1) Cr.P.C. In Dadu alias Tulsidas case, Section 32-A- it was held that convict under will not be entitled to ask for suspension of sentence as a matter of right, because Section 32-A has been held to be void to extent it takes away the right of courts to suspend a sentence awarded under the Act. In the case of Ramesh Prasad, it is in respect of a distinction in granting bail with reference to two statutory provisions, namely, Section 439 of the Code of Criminal Procedure and Section 389(1) of the Code of Criminal Procedure. In the case of Mossa Koya KP, quantum of custody has been taken into consideration. In the case of Tara Singh and others, Section 32-A of the N.D.P.S. Act has been taken into consideration. All these citations are interpreting Section 389(1), 439 of Cr.P.C. read with provisions of N.D.P.S. Act, whether High Court can grant suspension of sentence and bail or stay suspension. Ultimately, the principle is strong compelling reasons for grant of bail has been made out or not. Having regard to the case in hand, the cited decisions are not assisting the respondents. In the present case, the appellant has already undergone 06 years in custody as against 12 years sentence. 11. The Hon’ble Supreme Court in the case of Mangilal vs. State of Madhya Pradesh, reported in 2023 SCC OnLine SC 862, in paragraph-5 it has held as under:— “5. Sub-section (2) of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars. This has to be followed through an appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence with due certification. This has to be followed through an appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence with due certification. Such an application can be filed for anyone of the aforesaid three purposes. The objective behind this provision is to have an element of supervision by the magistrate over the disposal of seized contraband. Such inventories, photographs and list of samples drawn with certification by Magistrates would constitute as a primary evidence. Therefore, when there is noncompliance of Section 52A of the NDPS Act, where a certification of a magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence.” In the present case, photographs of sealed cover has been identified and not the charas substance. 12. In the case of Yusuf @ Asif vs. State, reported in 2023 SCC OnLine SC 1328, in paragraphs-11, 12, 13, the Hon’ble Supreme Court has held as under. “11. For the sake of convenience, relevant subsections of Section 52A of the NDPS Act are reproduced hereinbelow: “52A. Disposal of seized narcotic drugs and psychotropic substances.— (1) — (2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Criminal Procedure Code, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.” 12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn. 13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act.” In the present case also, we find there is noncompliance to Section 52-A of the NDPS Act, 1985. Order: 13. Taking note of aforementioned factual and legal aspects, prima facie, procedural lacunae as well as legal lacunae are forthcoming from records, appellant has made out grounds to allow I.A. No.01 of 2023 filed under Section 389(1) of Cr.P.C. arising out Criminal Appeal (DB) No.201 of 2021 filed under Section 374(2) of Cr.P.C. 14. Order: 13. Taking note of aforementioned factual and legal aspects, prima facie, procedural lacunae as well as legal lacunae are forthcoming from records, appellant has made out grounds to allow I.A. No.01 of 2023 filed under Section 389(1) of Cr.P.C. arising out Criminal Appeal (DB) No.201 of 2021 filed under Section 374(2) of Cr.P.C. 14. The substantive sentence of imprisonment imposed on the appellant Suresh Das alias Suresh Das Tatwa till final disposal of the Criminal Appeal (DB) No.201 of 2021 filed under Section 374 (2) of the Code of Criminal Procedure is suspended and he is directed to be released on bail on furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of the learned Sessions Judge, West Champaran at Bettiah, in Trial No.28 of 2018 arising out of NCB Case No.03 of 2018 (CIS No.NDPS 34/2018) with the condition that the appellant is directed to extend full cooperation to this Court in Criminal Appeal (DB) No.201 of 2021, failing which this order shall be liable for variance. We make it clear that whatever we have expressed in this order has no bearing on the final order to be passed in Criminal Appeal (DB) No.201 of 2021 and it is only a tentative opinion and it is only for the purpose of deciding Interlocutory Application (I.A. No.01 of 2023) under Section 389(1) Cr.P.C. and the Criminal Appeal (DB) No.201 of 2021 shall be decided by the concerned Roster Bench on its own merit. 15. Accordingly, I.A. No.01 of 2023 arising out Criminal Appeal (DB) No.201 of 2021 is allowed. ?