Non-compliance with Section 52A of the NDPS Act in evidence collection can lead to suspension of sentence, especially when prolonged custody and delays in appeal hearings are present.

ORDER :

Farjand Ali, J.

The instant second application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 16.11.2022 passed by the learned Special Judge, NDPS Cases, Pratapgarh in Sessions Case No.01/2019 whereby he was convicted under Section 8/15 of the NDPS Act and sentenced to suffer 20 years rigorous imprisonment along with a fine of Rs. 2,00,000/- and in default to further undergo two years' rigorous imprisonment. His first application for suspension of sentence was dismissed as not pressed by this Court vide order dated 13.04.2023 passed in S.B. Criminal Misc. Suspension of Sentence Application No.1227/2022 but a liberty was granted to him to renew the prayer if the appeal is not heard within a reasonable period. Hence, the instant application for suspension of sentence.

2. 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 52A of the NDPS Act has not been complied with. He placed reliance on the Petition(s) for Special Leave to Appeal (Crl.) No(s) 2893/21 titled Manohar Lal Ainani v. State of Rajasthan & Anr., wherein it was held vide order dated 15.11.2021 that looking to the prolonged custody period of the petitioner, bail shall be granted to him in that matter. In another landmark judgment of Satender Kumar Antil v. Central Bureau of Investigation and Ors. reported in AIR 2022 SC 3386, the aforesaid aspect has been reiterated. Hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted.

3. 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.

4. Heard learned counsel for the parties and perused the material available on record.

5. It is emanating from the record that the applicant is in custody in this case since 02.08.2018 for the accusation that he was sitting in a truck along with driver Daya Ram and upon making search, 21 bags containing poppy husk were recovered. The samples were taken from each bag and marked as 'A-1' to 'U-1'. After seizure, the accused were arrested, charge sheeted, tried and then convicted for the offence under Section 8/15 of the NDPS Act and sentenced to suffer 20 years imprisonment.

6. The defence plea that the Seizing Officer, Sub-Inspector Onkar Singh was not competent to make search and seizure of the contraband has worth. The discrepancies in the weight of contraband in different bags is another issue, which may be detrimental to the interest of the prosecution. The samples were sent to the FSL after 18 days of its collection which is against the mandate of law. Admittedly, neither inventory has been prepared nor samples were taken in the presence of a Magistrate. It is an admitted fact situation that the samples were collected by the Sub Inspector Onkar Singh at the spot, marked as 'A-1' to 'U-1' and sent the same to the FSL for chemical examination. No samples were taken in the presence of Magistrate for sending the same to the FSL. As per Section 52A of the NDPS Act, and Standing Order No.1/89, issued by the Government, it was imperative upon the police officer to prepare an inventory and take samples in the presence of a Magistrate so as to sanctify the process of seizure and presence of contraband in possession of the accused. 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. Besides the above, the appeal has been admitted by this Court on 08.12.2022 for the purpose of making a further