IMPORTANT POINT
Compliance with procedural safeguards under the NDPS Act is essential for the admissibility of evidence and the validity of convictions.

ORDER :

Farjand Ali, J.

1. The instant second application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 14.09.2022 passed by the learned Special Judge, NDPS Act Cases -cum- Additional Sessions Judge, Gulabpura District Bhilwara in Sessions Case No.08/2019 whereby he was convicted and sentenced to suffer maximum sentence rigorous imprisonment of ten years under Sections 8/15 & 8/25 of the NDPS Act and sentenced for ten years on each count alongwith fine of Rs.1,0,000/- and in default of payment of fine to further undergo three month’s RI and awarded lesser sentence for a period of one year RI for the offence under Section 465 of the IPC along with fine of Rs.1,000/- and in default to further undergo one moth’s SI.

2. His first application for suspension was dismissed as not pressed by this Court vide order dated 05.04.2024 passed in S.B. Criminal Misc. Suspension of Sentence Application No.128 /2023. Hence, the instant application for suspension of sentence.

3. It is contended on behalf of the applicant that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and thus, reached at an erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this court being the first appellate Court. He submitted that the Seizing Officer collected the samples from the spot and sent to the FSL for its examination thus, Section 52-A of the NDPS Act has not been complied with. He is behind the bars more than five and half years. Hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted.

4. Per contra, learned public prosecutor has vehemently opposed the prayer made on behalf of the accused-applicant for releasing the appellant on application for suspension of sentence.

5. Heard learned counsel for the parties and perused the material available on record as also the impugned judgment.

6. It is emanating from the record that on 27.10.2018, Goverdhan Lal, SHO, PS Gulabpura along with his team during patrolling intercepted a silver colour Mahendra SUV 500 Car bearing registration No.RJ09UA7964 and upon interrogation driver of the vehicle disclosed his name as Jaspal. During search, six plastic bags containing poppy husk. The weight of these bags was 102.5 Kg. Thereafter, by adopting usual mode, investigation was undertaken and the recovered contraband was seized and the samples were marked ‘A-1’ to ‘A-6’ by the Seizing Officer wehreafter the same were sent to the FSL for its chemical examination.

7. Admittedly, the inventory though prepared but not in accordance with the mandate provided under Section 52-A of the NDPS Act, neither samples were taken on the same day nor in the presence of a Judicial Magistrate. As per the mandate of law, the samples taken in the presence of the Magistrate, ought to have been sent to the FSL for its chemical examination. Having not done so, the Investigating Agency has committed a grave error and as such, the FSL report would not help the case of the prosecution.

8. It would be worthwhile to mention here that by virtue of powers given under Section 52-A r.w. Section 76 of the NDPS Act, the Central Govt. Department of Finance issued a Gazette Notification dated 23.12.2022 regarding classification, seizing, sealing, storing, taking samples of the contraband etc. called as Narcotic Drugs and Psychotropic Substances (seizure, search, sampling and disposal), Rules 2022 (hereinafter referred as ‘the Rules of 2022’). The said Rule came into force from 23.12.2022. It would be relevant to reproduce certain provisions, which are as under:-

3. Classification of seized material. –

(1) The narcotic drugs, psychotropic substances and controlled substances seized under the Act shall be classified based on physical properties and results of the drug detection kit, if any, and shall be weighed separately.

(2) If the narcotic drugs, psychotropic substances and