IMPORTANT POINT
Sampling of contraband – Issue of improper sampling would have to be considered carefully at the time of adjudication of appeal.

JUDGMENT

Crl.M.(Bail) 1324/2022 in Crl.A. 338/2021

This application has been filed seeking regular suspension of sentence in Crl. A. 338/2021 filed by the appellant assailing the judgment of conviction dated 25th August 2021 and order on sentence dated 28th August 2021 passed by the Ld. ASJ, Patiala House Courts in FIR No. VIII/09/DZU/2018 P.S. NCB. The appellant has been convicted and sentenced to RI for 10 years with a fine of Rs.1 lakh for the offence punishable under sections 22 (c) and 23 (c) NDPS Act. The appellant is a 38 years old lady who is a citizen of Zimbabwe and has already undergone 4 years, 11 months and 18 days in custody as per Nominal Roll dated 20th March, 2023.

2. Briefly, the prosecution case is that pursuant 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 accused of possessing a commercial quantity of the contraband, and they are follows:—

(i) Mossa Koya KP v. State (NCT of Delhi), 2021 SCC OnLine 3110;

(ii) Daler Singh v. State of Punjab, 2006 SCC OnLine P&H 1591l;

(iii) Joseph Onyekachukwu Nawabo v. Directorate of Revenue Intelligence, CRL.A. 1175/2019 decided on 31st January, 2023 by this Court;

(iv) Chima Akuma v. State, CRL.A. 1365/2019 decided on 31st January, 2023 by this Court;

4. Furthermore, the Hon’ble Supreme Court in Sonadhar v. The State of Chhattisgarh, SLP (Crl.) 529/2021 vide order dated 6th October, 2021 has laid down certain guidelines for the release of convicts who have already undergone about half of their sentence while their appeals are still pending adjudication.

5. In Mossa Koya KP v. State (NCT of Delhi) (supra) the Hon’ble Supreme Court granted suspension of sentence to an appellant who was sentenced to 10 years RI who was found in joint possession of 1kg heroin and had spent about 8 years in custody; in Chima Akuma v. State (supra) this Court had released an appellant on suspension of sentence who was in possession of commercial quantity of contraband and had undergone more than half of their sentence; in Joseph Onyekachukwu Nawabo (supra), an appellant who had undergone more than 7 years of custody (out of the total 10 years) for possessing a commercial quantity of the contraband, this Court had suspended the sentence of that appellant; in Daler Singh v. State of Punjab (supra) the Hon’ble High Court of Punjab & Haryana had laid down certain principles for release of convicts on bail inter alia those who were sentenced for 10 years for conscious possession of commercial quantity of contraband, should be entitled to bail if they have undergone a sentence of 4 years and that it must include at least 15 months undergone post conviction.

6. In Joseph Onyekachukwa Nwayibo (supra) this Court held as under:—

“For the purpose of assessing a plea for suspension of sentence in an NDPS case, the following decisions are adverted to the Hon”ble Supre