Non-compliance with Section 52-A of the NDPS Act invalidates evidence, warranting suspension of sentence pending appeal.

                                                                                                                                                 Order

24/09/2024

1. The instant second application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 15.04.2023 passed by the learned Special Judge, NDPS Act Cases-cum-Additional Sessions Judge No.1, Nohar, District Hanumangarh in Sessions Case No.73/2019 whereby he was convicted under Section 8/22 of the NDPS Act and sentenced to suffer 15 years rigorous imprisonment along with a fine of Rs.1,50,000/- and in default to further undergo one month’s rigorous imprisonment. His first application for suspension of sentence was dismissed as not pressed by this Court vide order dated 06.10.2023 passed in S.B. Criminal Misc. Suspension of Sentence Application No.412/2023 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 52-A 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 Vs. 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 vs. 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 19.05.2019 for the accusation that during patrolling near Chak 22 AG Taranagar road upon suspicion, the SHO Mohd. Anwar alongwith his team on seeing a person who was having a bag on his shoulder was interrogated. In response, he disclosed his name as Dhanna Ram and on search being made, 30 boxes containing 6000 PRVORN-SPAS were recovered. The samples were taken by the SHO from the recovered contraband for sending the same to the FSL. After search and seizure, the accused Dhanna Ram was arrested, charge sheeted, tried and then convicted for the offence under Section 8/22 of the NDPS Act and sentenced to suffer 15 years imprisonment.

6. It is an admitted fact situation that neither inventory has been prepared nor samples were taken in the presence of a Magistrate. As per Section 52-A 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 03.05.2023 for the purpose of making a further appreciation of evidence. Being the first appellate Court, this Court is supposed to scrutinize the material brought on record again so as to verify the finding of guilt but owing to the pendency of the