IMPORTANT POINT
Proper adherence to sampling procedures under the NDPS Rules is essential for the validity of evidence in drug-related offenses.

JUDGMENT :

Prakash Chandra Gupta, J.

Shri Amit Singh Sisodia, Advocate for appellant. Ms. Anita Singh, Panel Lawyer for respondent/State.

Heard on I.A. No. 3374/2024, which is first application filed under section 389(1) of Cr.P.C. for suspension of jail sentence and grant of bail moved on behalf of appellant - Ramkishan.

2. Learned trial Court has convicted the appellant under section 8/15(b) of the NDPS Act and sentenced him to undergo RI for 03 years with fine of Rs. 50,000/- with default stipulation, vide judgment of conviction and order of sentence dated 26-10-2023 passed by the Special Judge, NDPS Act, Jawad, District Neemuch in Special NDPS Case No. 67/2017.

3. As per prosecution case, on 6-6-2017, appellant was found having and transporting 42 kgs. of Poppy Straw in Alto Car bearing registration No. RJ26-CA-4825, without having any valid license or authority. The police had seized the aforesaid contraband and vehicle from the possession of the appellant. Accordingly, a crime was registered against him.

4. Learned counsel for the appellant submits that appellant has not committed the offence and he has falsely been implicated in the case. It is submitted that the samples drawn by the seizing police officer at the spot has been sent for chemical examination but samples drawn by the Executive Magistrate has not been sent for chemical examination therefore, there is violation of Rule 13 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022. It is further submitted that there is no minimum sentenced prescribed under section 8/15(b) of the NDPS Act. Counsel has placed reliance on the judgment in the case of Vishal Shahni vs. State of M. P., Cri. Appeal No. 4576/2023 dated 29-2-2024 in support of his contention. Appellant has suffered incarceration of about 09 months. Final hearing of this appeal is not possible in near future therefore, it is prayed that the remaining jail sentence of appellant may be suspended and he be released on bail.

5. Per contra, learned counsel for the respondent/State has objected the prayer and prayed for rejection of the application.

6. Heard learned counsel for the parties and perused the record.

7. In the case of Vishal Shahni (supra), the Principal Seat of High Court at Jabalpur has observed in paragraph-12 as under :—

“12. As per Rule 13 of Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules 2022, samples after being certified by Magistrate shall be sent to one of jurisdictional laboratory for testing. In present case, samples were drawn by investigating officer and also before the Magistrate and samples which were sent to the State Forensic Laboratory was drawn by investigating officer and was not drawn before the Magistrate. Therefore, there is non-compliance of Rule 13 of Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal Rules, 2022).”

8. In the instant case, as per statement of the Executive Magistrate Shri Ashok K. Sen (PW-13), he has drawn samples of seized contraband on 9-6-2017 in 04 packets as Article-A/3, A/4, B/3 and B/4 but as per letter (Exhibit-P/30), only samples of packet Article-A/1 and B/1 which were drawn by the seizing police officer at the spot has been sent for chemical examination therefore, it is clear that there is a clear cut violation of Rule 13 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022.

9. Considering overall facts and circumstances of the case, coupled with the fact that final disposal of this appeal is not possible in near future, without expressing any opinion on the merits of the case, I.A.No. 3374/2024 is allowed and jail sentence of the appellant shall remain suspended.

10. It is directed that subject to depositing the fine amount, if already not deposited, appellant shall be released on bail, on furnishing personal bond in the sum of Rs. 1,00,000/- (Rupees One lakh only) with two sureties