2023 (5) TMI 1390 - HC - Indian Laws

Challenge to conviction and sentence awarded - recovery of Methamphetamine - possession of commercial quantity of the contraband - sampling procedures under the NDPS Act - HELD HAT - This Court is of the considered opinion that the Standing Orders have to serve a certain purpose having been issued by the Narcotics Control Bureau, Government of India and cannot be rendered optional for compliance to the investigating agencies. The procedures prescribed in the said orders are based upon a certain logic which ought to be respected, or else it would be a worthless piece of paper - in this Court's view, the Standing Orders ought to be respected by the investigating agencies and non-compliance of those Standing Orders may naturally invoke a reasonable doubt relating to the process of sampling which is the most critical procedure to be carried out in order to ascertain the nature of the substance and its quantity. In fact, the Field Officers Handbook issued by the Narcotics Control Bureau for Drug Law Enforcement also reiterates these procedures prescribed under the Standing Orders. As a side-wind, it is worth mentioning that post the decision in Mohanlal 2016 (5) TMI 500 - SUPREME COURT , the discussion has also veered towards whether the sampling has to be done mandatorily before the Magistrate in compliance of Section 52A NDPS Act. Recently, a Coordinate Bench of this Court in Kashif v. Narcotics Control Bureau, 2023 (5) TMI 1383 - DELHI HIGH COURT while granting relief to the accused has taken the view that the compliance of Section 52A is mandatory and cannot be delayed or ignored. Moreover, there is a recent Standing Order issued dated 23rd December 2022 by the Ministry of Finance in exercise of powers conferred by Section 76 r/w Section 52 A of NDPS Act wherein procedure for seizure and storage of seized material and sampling and disposal has been provided in detail and which directs sampling to be done in front of the magistrate. Therefore, as per this view, the sampling ought to be done in compliance of Section 52A and not at the time of seizure. In this case, besides the fact that the appellant may have a case to argue on the issue of defective sampling at the time of seizure, the appellant has also undergone a substantial period of sentence and the appeal is likely to take some time for hearing. In view of the directions of the Hon ble Supreme Court in SONADHAR VERSUS THE STATE OF CHHATTISGARH 2021 (10) TMI 1446 - SUPREME COURT , as well as SAUDAN SINGH VERSUS THE STATE OF UTTAR PRADESH 2021 (10) TMI 1445 - SC ORDER (where the Hon ble Supreme Court has stated that in cases other than life sentence cases the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail), this Court deems it fit to suspend the sentence of the appellant. It is therefore directed that the sentence of the appellant be suspended pending the hearing of the appeal, on furnishing a personal bond in the sum of ₹1,00,000/- with one surety bond of the like amount, subject to the satisfaction of the learned Trial Court/ CMM/ Duty Magistrate, further subject to the fulfilment of conditions imposed. Bail application allowed.

Summary

Issues Involved:

1. Suspension of sentence pending appeal.
2. Compliance with sampling procedures under the NDPS Act.
3. Applicability of Standing Orders in narcotics cases.
4. Precedents on suspension of sentence for similar offenses.
5. Conditions for granting bail.

Issue-wise Detailed Analysis:

1. Suspension of Sentence Pending Appeal:

The appellant sought suspension of her sentence, which was a 10-year rigorous imprisonment for offenses under sections 22(c) and 23(c) of the NDPS Act. She had already served more than half of her sentence. The court considered precedents where similarly placed individuals were granted suspension of sentence, especially when appeals were pending for a long duration. The Supreme Court's guidelines in Sonadhar v. The State of Chhattisgarh were particularly noted, which allow for suspension of sentence when convicts have served a substantial portion of their sentence.

2. Compliance with Sampling Procedures under the NDPS Act:

The appellant challenged the sampling procedure, arguing it was not in compliance with the Standing Orders. The contraband was seized from two separate bags, mixed, and then sampled, which contravenes the guidelines that require separate samples from each package. The court acknowledged that the improper sampling could be a significant issue at the appeal stage, as it could affect the integrity of the evidence.

3. Applicability of Standing Orders in Narcotics Cases:

The court delved into the importance of compliance with Standing Orders issued by the Narcotics Control Bureau. It was emphasized that these orders, although sometimes considered directory, are crucial for ensuring the integrity of the sampling process. The court cited various judgments, including Noor Aga v. State of Punjab and Union of India v. Bal Mukund, which stressed the necessity of adhering to these guidelines to maintain the sanctity of evidence.

4. Precedents on Suspension of Sentence for Similar Offenses:

The appellant's counsel cited several cases where the courts had granted suspension of sentence to individuals convicted under similar circumstances. Notably, cases like Mossa Koya KP v. State (NCT of Delhi) and Chima Akuma v. State were referenced, where the appellants had undergone a significant portion of their sentence and were granted suspension pending appeal.

5. Conditions for Granting Bail:

The court laid down specific conditions for granting bail, including the appellant not leaving the country, providing a permanent address, appearing in court when required, and reporting to the investigating officer regularly. These conditions were imposed to ensure the appellant's compliance and prevent any interference with the judicial process.

In conclusion, the court decided to suspend the appellant's sentence pending appeal, considering the time already served and the potential issues with the sampling procedure. The decision was made with a clear understanding that it does not reflect on the merits of the case, which would be addressed during the appeal.