The failure to meet statutory requirements for evidence handling and the absence of credible testimony regarding ownership of the premises where contraband was found led the court to justify granting bail.

JUDGMENT :

I.A. No. 11655 of 2024

1. Heard learned counsel for the appellant and the learned A.P.P.representing the State.

2. The instant interlocutory application has been filed for suspension of sentence of the appellant by enlarging him on bail during pendency of the instant criminal appeal, which has been preferred against the judgment of conviction dated 14.08.2024 and order of sentence dated 23.08.2024 passed in NDPS Case No. 25 of 2022 arising out of Khunti P.S. Case No. 48 of 2022 by the learned District & Additional Sessions Judge-II-cum-Special Judge, NDPS Act, Khunti whereby the appellant has been convicted for the offence punishable under Section 15 (b) and 18(C) of the NDPS Act and has been sentenced to undergo R.I. for 8 years with a fine of Rs.80,000/- and a default sentence of R.I. for 1 year 6 months only u/s 15(b) of the NDPS Act and further sentenced to undergo R.I. 8 years with a fine of Rs.80,000/- and a default sentence of R.I. of 1 year 6 month u/s 18(C) of the NDPS Act. Both the sentences were directed to run concurrently.

3. It is submitted on behalf of the appellant that the very genesis of the case is that contraband is said to have been recovered from the house of the appellant but neither the Informant (P.W.3) nor the Investigating Officer (P.W.5) could ascertain as to whether the house from which the alleged contraband have been recovered was belonging to the appellant or not and thus the entire charge leveled against the appellant becomes doubtful.

4. It has further been pointed out on behalf of the appellant that from para 16,17 and 18 of the testimony of the Investigating Officer (P.W.5) and the para 17,19 and 20 of the testimony of the Informant (P.W.3) it is clear that neither the Investigating Officer nor the Informant in this case has investigated to ascertain and determine as to whether the house from where the contraband was recovered belonging to the appellant.

5. Learned counsel for the appellant has further submitted that the mandatory provision of Section 52A(3) and (4) of the NDPS Act has not been complied with in view of the fact that sample and inventory has not been prepared and taken to the Magistrate in order to send it to the Forensic Science Laboratory rather permission for sending the sample to FSL was obtained on 30.03.2022 as evident from para 5 of the testimony of P.W.5, which is after a lapse of 6 days of the alleged recovery dated 24.03.2022. Further, it has also come in the evidence that the contraband has been destroyed by rate-bite and rain, as evident from the impugned judgment wherein the learned Trial Court has observed at para 19 as under:

“The argument of prosecution or evidence adduced by prosecution in this regard that the seized materials have been destroyed due to rate-bite and rain does not seem to be credible in view of the fact that it is not possible for any Rat(s) to eat about 17 Kgs of Poppy straw from each of the two sacs and that too without damaging the sacks visible in Photographs Marked Ext.14, 14/1 to Ext.14/23. It is also not believable that rain and sun-hear would destroy only 17 Kgs of poppy straw from plastic bags leaving the rest poppy straw intact.”

As such it is argued on behalf of the appellant that even the weight of the contraband has not been confirmed and the entire prosecution case gets vitiated.

6. Further, it has been pointed out that it is also admitted case of the prosecution that the permission for sampling has been taken from the Court after lapsed of several days and as such doubt is created in the prosecution case as to whether alleged contraband has been recovered from the house of the appellant or not. Further, it is submitted that the appellant is in custody since 24.03.202