Rajasthan High Court - Jodhpur
Kamlesh Kumar vs State Of Rajasthan (2025:Rj-Jd:29603) on 8 July, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:29603]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 318/2024
Kamlesh Kumar S/o Shri Bheru Lal Gurjar, Aged About 29 Years,
R/o Chakkikhera (Kochariya), P.s. Mandal, District Bhilwara
(Raj.) (At Present Lodged At Central Jail Udaipur)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Rajendra Singh Shekhawat
Mr. Surendra Bagmalani
Ms. Priyanka Borana
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order 08/07/2025
1. The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 22.02.2022 passed by the learned Special Judge, NDPS Act Cases No.2, Chittorgarh in Sessions Case No.54/2017 (33/2016) whereby he was convicted under Sections 8/15, 8/25 and 8/29 of the NDPS Act and sentenced to suffer 10 years rigorous imprisonment along with a fine of Rs.1,00,000/- and in default to further undergo 6 months' rigorous imprisonment on each count.
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 (Downloaded on 11/07/2025 at 10:23:57 PM) [2025:RJ-JD:29603] (2 of 6) [SOSA-318/2024] appreciated again by this court being the first appellate Court. 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. Perusal of the record revealed that acting on 29.112015 at 08.00 a.m. during Nakabandi the police party of Police Station Sadar Nimbaheda intercepted a Swift Car coming from Neemach Side. Two persons got down from the vehicle and tried to escape but the police party caught them. Upon searching the car, one white plastic sack was recovered from the back seat, whereas two black and two white sacks were recovered from the dickey of the car. The persons caught told that the material in the sacks is opium doda chura. The accused persons were arrested and further proceedings were carried out in accordance with law.
5.1. It is further revealed from the record that the total weight of these 5 bags was 81 kg. The team opened all the bags and samples of 200 gm were taken from each of the sack. All these samples were admixtured and, two samples of 500 gm each, representative sample and control sample, were prepared and then sent to the FSL. Admittedly, samples from each bag has not been taken individually rather the samples were collected from a mixtures of all bags and the mixed sample was sent to the FSL for chemical examination, which is contrary to the Standing Order (Downloaded on 11/07/2025 at 10:23:57 PM) [2025:RJ-JD:29603] (3 of 6) [SOSA-318/2024] Nos.1/1988 & 1/1989 issued by the Government Of India. The certainty that each of the plastic sack was having presence of contraband in it had been compromised. The petitioner has remained in custody for more than four years. The present bail application is being considered in light of the long incarceration and procedural infirmities.
6. This court has passed a detailed order in S.B. Criminal Misc. 3rd Bail Application No. 1162/2022; Ramchandra v. State of Rajasthan, decided on 27.05.2022 wherein the rules pertaining to sample collection contained in Standing Order No. 1/1989 dated 13.06.1989 issued by Government of India under Section 52A of NDPS Act have been enumerated inter alia other aspects. The relevant para No.4 has been reproduced as under:-
"4. Heard learned counsel for the petitioner and learned public prosecutor. Perused the material available on record. The argument that collection of samples was not proper and in accordance with the procedure of sampling as per Standing Order No. 1/1989 seems to be worth considering. Clause 2.1 to 2.8 of the Violation Order/ Instruction No.1 of 1989 dated 13.6.1989 issued by the Government of India under Section 52 A of N.D.P.S. Act are of relevance to the present set of facts and are as follows:
2.1 All drugs shall be classified, carefully, weighed and sampled on the spot of seizure.
2.2 All the packages/containers shall be numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the persons from whose possession the drug is recovered and a mention to this effect should invariably be made in the panchnama drawn on the spot.
2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and (Downloaded on 11/07/2025 at 10:23:57 PM) [2025:RJ-JD:29603] (4 of 6) [SOSA-318/2024] charas (hashish) were a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. 2.4 In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects the packages/container may be carefully bunched in lots of 10 package/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of, 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. 2.6 Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. 2.7 If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja \and hashish, one more sample (in duplicate) may be drawn for such remainder package/container.
2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample the in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.
In simple words, if there were eight plastic bags marked A, B, C,...., H that allegedly contained contraband, then eight separate representative samples from each plastic bag marked A1, B1, C1,...., H1 respectively and eight separate representative samples as control samples from each plastic bag marked A2, B2, C2,....,H2 respectively should have been collected foinvestigation. It is an act of utmost recklessness and irresponsibility that even after collecting separate samples from each of the eight bags, the samples were again mixed together and submitted for investigation as one admixture. Since the samples were not collected in an accurate manner and the possibility of there being no contraband in any one or more of the eight bags (Downloaded on 11/07/2025 at 10:23:57 PM) [2025:RJ-JD:29603] (5 of 6) [SOSA-318/2024] cannot be obviated, the contraband can be assumed to be below commercial quantity and the embargo contained under Section 37 of the NDPS Act is not attracted.
In Noor Aga v. State of Punjab, reported in (2008) 3 JIC 640, Hon'ble the Supreme Court has held that when directions are issued by lawful authorities, then they take the form of legal sanction and the sub-authorities are under obligation to comply with the same. Statutory instructions have been held to be mandatory in nature by the Apex court in Union of India v. Azadi Bachao Andolan, reported in (2004) 10 SCC 1. The logical upshot of the above mentioned precedents is that there cannot be flagrant violation of rules/guidelines, such as those specified in the Standing Order No. 1/1989, and it should be incumbent on the officers of investigating agency to comply with these rules so that sanctity of physical evidence in such cases remains intact and an unfavourable reasoning is not drawn against the prosecution/agency.
The seizing officer(s) in the present case has not paid any heed to these rules and the samples were not collected individually so as to represent each of the sack rather samples were drawn from the admixtures contained in the 5 plastic sacks.
7. Considering the submission with regard to non-compliance of mandatory provisions and flouting of standing order issued by the Government of India and the fact he has behind the bar for more than four years and hearing of the appeal would likely to take a long time, this court is of the opinion that it is a fit case for suspending the sentence awarded to the accused-appellant.
8. Accordingly, the application for suspension of sentence filed under Section 430 of the BNSS is allowed and it is ordered that the sentence passed by learned trial court, details of which are mentioned in opening para of this order, against the appellant- (Downloaded on 11/07/2025 at 10:23:57 PM)
[2025:RJ-JD:29603] (6 of 6) [SOSA-318/2024] applicant named above shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail provided he executes a personal bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 08.08.2025 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-
1. That he will appear before the trial Court in the month of January of every year till the appeal is decided.
2. That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.
3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.
9. The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused- applicant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.
(FARJAND ALI),J 89-Pramod/-
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