Proper procedures under the NDPS Act and Rules must be followed for valid seizure and sampling; lapses can lead to benefit of doubt for the accused.

ORDER :

Reference may be made to the order dated 20^th January 2025. In pursuance thereto, Hrudeep P. Janardhanan, Senior Superintendent of Police, Dhanbad has appeared.

2. It has been stated by him that due care is being taken for the purpose of proper investigation said to be under the statutory mandate, particularly the issue of seizure, measurement and sampling, as provided under the NDPS Act, 1985 and the NDPS Rules, 2022.

3. It has been submitted by him that the SOPs are being prepared. It has also been stated that after the SOP, if any investigating officer is found to be involved in latches of investigation, they will be proceeded to departmental proceeding, so as to give message among the investigating officers that latches and deficiencies into investigation shall be considered to be offence and crime against the society, so that such latches may not be repeated in future.

4. The reason for calling the Senior Superintendent of Police, Dhanbad is the latches in the matter of investigation by the concerned investigating officer, who seized the contraband, which is in the quantity of 100 KG, the measurement has been shown to be 100 KG on presumption, without utilizing the DD Kit as per the procedure laid down under NDPS Rules, 2022.

5. Considering the said submission as has been taken note herein above, the personal appearance of Senior Superintendent of Police, Dhanbad is dispensed with.

I.A. No.13159 of 2024

6. This instant interlocutory application has been filed for suspension of sentence during the pendency of the appeal, which has been filed against the Judgment of conviction dated 29.9.2023 and order of sentence dated 09.10.2023 passed by learned Special Judge, Dhanbad in NDPS Case No.03 of 2016, arising out of Barwadda P.S. Case No.02 of 2016, whereby and whereunder the appellant has been convicted under Sections 20 (b) (ii) (c) of NDPS Act and sentenced to undergo R.I. for 12 years with a fine of Rs.1,50,000/- and in default of payment of fine, further directed to undergo R.I. for 2 years.

7. Mr. Rakesh Kumar, learned counsel appearing for the appellant has taken the ground for suspension of sentence that although the conviction is based upon the seizure of commercial quantity, which has been assessed to be 100 KG of ganja (contraband), but the measurement of said recovered contraband (ganja) is done only on presumption by the investigating officer, without it being measured by the DD Kit as per the statutory command as provided under NDPS Rules, 2022. It has also been submitted that even the sampling has not properly been done as required to be done under Section 52(A) (3) of NDPS Act, 1985 coupled with Rules 8, 9 & 10 of the NDPS Rules, 2022.

8. The ground has also been taken by referring to the testimony of PW-4 & PW-6 that the sampling before sending it to the FSL has also not been corroborated by not producing the said contraband before the concerned Judicial Magistrate as required under the Rules.

9. Learned counsel appearing for the appellant based upon the aforesaid grounds has submitted that it is a fit case for suspension of sentence.

10. While on the other hand, Mr. Shailesh Kr. Sinha, learned Additional Public Prosecutor appearing for State of Jharkhand has vehemently opposed the prayer for suspension of sentence.

11. It has been contended that if the testimony of the witnesses is to be taken into consideration, the grounds which have taken on behalf of the appellant, cannot be said to be sufficient for the purpose of suspension of sentence.

12. It has been submitted that the contraband, so recovered has been send to the FSL, wherein, the authenticity has come with respect to the contraband, so far as its nature is concerned.

13. The learned State counsel based upon the aforesaid grounds has submitted that it is not a fit case for suspension of sentence.

14. We have heard learned counsel for the parties and gone across the findings recorded by the learned trial court in the impugned Judgment as also the testimony a