Bombay High Court
Sanjay Jain vs Akshay Hunurkar And Anr on 9 November, 2023
Author: Bharati Dangre
Bench: Bharati Dangre
2023:BHC-AS:34877
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.3456 OF 2023
IN
CRIMINAL APPEAL NO.934 OF 2023
Sanjay Jain .. Applicant
Versus
Akshay Hunurkar & Anr. .. Respondents
...
Mr.Anil Lalla i/b Lalla & Lalla for the Applicant.
Ms.Ameeta Kuttikrishnan for the CBI.
Ms.M.R.Tidke, A.P.P. for the State/Respondent.
...
CORAM: BHARATI DANGRE, J.
DATED : 09th NOVEMBER, 2023
P.C:-
1. By the present application, the Applicant who has fled
an Appeal calling in question his conviction and sentence
imposed upon him by the Additional Sessions Judge & Special
Judge, NDPS Thane in NDPS Special Case No.31 of 2015, seeks
suspension of his sentence and pray for his release on bail,
pending the adjudication of his Appeal.
2. Heard the learned counsel Mr.Anil Lalla for the
Applicant, who is opposed by Ms.Ameeta Kuttikrishnan, who
represents the CBI.
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The Applicant faced trial in NDPS Special Case No.31 of
2015 for committing the offences punishable under Section 22
read with Section 8(c), 28, 29 and 30 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (for short, "the NDPS
Act").
3. As per the case of the prosecution, on the information
received by the Intelligence Offcer, that the present Applicant
alongwith his accomplice, one Pramod Pandey, was in
possession of substantial quantity of contraband substance,
viz. Mephedrone in his Flat No.202, Ostwal Orchid, Mira Road,
Thane, a search was carried out and it lead to seizure of 5 kg.
white crystalline powder, which was analyzed to be
Mephedrone, a psychotropic substance. As per the
prosecution, the substance was supplied by Accused No.2-
Pramod Pandey and the present Applicant used to deliver and
supply the Mephedrone, as per his order, by supplying courier
parcels. The information supplied by the present Applicant
that Accused No.4 would be visiting the fat for collecting
Mephedrone, lead to Accused No.4-Chandramani Pandey,
Pramod Pandey and Laduram Kumawat.
The statement of the Applicant alongwith other co-accused was
recorded under Section 67 of the NDPS Act and in his statement,
Pramod Pandey gave the information that he had arranged 5 kg
of Mephedrone, which would be supplied by the two persons i.e.
Accused Nos.8 and 9 to Accused Nos.5 and 6 and the said
delivery was to take place in front of Hotel Regency and this lead
to another search by the team of the Department, which lead to
recovery of crystalline powder, being approximately 25 kg.
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The samples of substance collected during the frst and
second raid were sent to Chemical Analyser to confrm that it
was Mephedrone.
4. The case of the prosecution led the Special Judge to
ascertain whether the prosecution proved that Accused Nos.1
to 4 with other accused entered into conspiracy to procure,
sale, purchase, transport inter-state, store and possess 5 kgs
of Mephedrone illegally and whether Accused No.2 in
pursuance of the conspiracy, transported 21.45 kgs of
Mephedrone to the premises exclusively in possession of
Accused No.1-Sanjay Jain, to be disbursed to various
customers.
5. On analyzing the prosecution case placed before it, the
Special Judge recorded that it is only the present Applicant,
who is found to have been in possession of the contraband and
as far as the second raid is concerned, since inspite of
suffcient efforts, the prosecution could not trace out the panch
witness to prove the panchnama and it has proved to be fatal
to the case of the prosecution. The exclusive possession of the
contraband was proved as far as the Applicant is concerned,
since PW 10-power of attorney holder of the landlady in
respect of Flat No.202, produced the Agreement as well as the
bank passbook, where the Applicant has transferred the
amount towards the rent of that fat.
On appreciation of the evidence, the Special Judge
recorded that the prosecution had proved that Applicant-
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Sanjay Jain was in possession of 5 kg of Mephedrone, the
commercial quantity of psychotropic substance in
contravention of Section 8(c) and thus committed the offence
punishable under Section 22(c) of the NDPS Act. It is further
recorded that the prosecution has failed to prove that the
offence is committed in pursuance of the conspiracy hatched
by the accused persons and the other accused persons were
acquitted, since there was no evidence against them except
their statements recorded under Section 67 of the NDPS Act,
which are not admissible in the wake of the decision in the case
of Tofan Singh Vs. State of Tamil Nadu1.
6. On fnding the Applicant guilty of being in possession of 5
kg. of Mephedrone and by recording that he found in
possession of much higher quantity than the prescribed
commercial quantity, which is prescribed to be 50 gm, on
fnding him guilty of committing an offence under Section 8(c)
of the NDPS Act, he was imposed with a sentence of R.I. for the
period of twenty years and to pay fne of Rs.1,00,000/-.
7. The Appeal fled by the Appellant is admitted by me.
Mr.Lalla has argued before me that the other accused
persons, who were tried alongwith the Applicant, having been
acquitted and, since the charge of conspiracy has not been
proved, the learned Judge could not have found him guilty
under Section 8(c) and awarded him the sentence of twenty
years imprisonment. Mr.Lalla would submit that Section 32-B
1 (2021) 4 SCC 1
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of the NDPS Act prescribe the factors to be taken into account
for imposing higher than the minimum punishment and when
Section 22(c) provide that whenever the contraband involves
commercial quantity, the punishment prescribed may be not
less than ten years, but which may extend to twenty years,
there is no justifcation in the learned Judge imposing the
maximum punishment of twenty years.
Apart from this, Mr.Lalla has invited my attention to
another important facet, being non-compliance of Section 52-A
of the NDPS Act and by relying upon the decision of the Apex
Court in the case of Union of India Vs. Mohanlal & Anr. 2, he
would also place reliance upon the two recent decisions of the
Apex Court in the case of Simranjit Singh Vs. State of Punjab
(Cri.Appeal No.1443 of 2023 decided on 09.05.2923) and
Yusuf @ Asif Vs. State (Cri.Appeal No.3191 of 2023 decided on
13/10/2023).
8. On perusal of the impugned judgment, I cannot ignore
the fndings rendered by the Special Judge, on appreciation of
the evidence and, in particular, when the recovery of 5 kg. of
Mephedrone from the Applicant is conclusively proved, though
the charge of conspiracy has failed, independent of conspiracy,
since the seizure was proved as against the present Applicant,
he has been rightly convicted.
As regards the imposition of the sentence higher than
the prescribed minimum, I must refer to the decision of the
Apex Court in the case of Gurdev Singh Vs. State of Punjab3,
2 (2016) 3 SCC 379
3 (2021) 6 SCC 558
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where the provision came to be interpreted with particular
reference to the terminology used, "such factors as it may
deem ft" and it has been held that on fair reading of Section
32-B of the Act, it cannot be said that while imposing a
punishment higher than the minimum term of imprisonment
or amount of fne, the Court has to consider only those factors,
which are mentioned/enumerated in Section 32-B of the Act.
It has been categorically held that the quantity of the
substance with which the Accused is charged is a relevant
factor, which can be taken into consideration while fxing the
quantum of punishment. Hence, considering the ginormous
quantity of 5kg of Mephedrone, no fault can be found in the
impugned judgment imposing the maximum punishment and,
therefore, I am not convinced with the argument of Mr.Lalla
that on the said count, he deserve his release on bail.
9. However, my attention is invited to another aspect as
regards the law that has been evolved involving Section 32-B of
the NDPS Act.
In Mohanlal (supra), a specifc direction is issued by the
Apex Court to the effect that no sooner the seizure of any
Narcotic Drugs and Psychotropic and controlled Substances and
Conveyances is effected, the same shall be forwarded to the
offcer in-charge of the nearest police station or to the offcer
empowered under Section 53 of the Act, who shall then approach
the Magistrate with an application under Section 52A(ii) of the
Act, which shall be allowed by the Magistrate as soon as may be
required under sub Section (3) of Section 52A and the sampling
shall be done in supervision of the Magistrate.
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In the case of Simarnjit Singh (supra), upon a conviction
by the Special Judge under the NDPS Act, when an Appeal
preferred by the Accused was dismissed by the High Court, the
Apex Court relying upon the decision in the case of Mohanlal
(supra) dealt with the submission that the prosecution is
vitiated, as the work of drawing sample was done without
taking recourse to sub-section (2) of Section 52-A of the NDPS
Act, as the samples were drawn immediately after the seizure.
In this background, Their Lordships of the Apex Court in
the judgment dated 09/05/2023 observed as under :-
"9. Hence, the act of PW-7 of drawing samples from all the
packets at the time seizure is not in conformity with the law laid
down by this Court in the case of Mohanlal. This creates a serious
doubt about the prosecution's case that substance recovered was a
contraband."
In yet another decision in the case of Yusuf @ Asif (supra),
once again relying upon the decision in the case of Mohanlal
(supra), the following observations are recorded :-
"15. In Mohanlal's case, the apex court while dealing with
Section 52A of the NDPS Act clearly laid down that it is manifest
from the said provision that upon seizure of the contraband, it has
to be forwarded either to the offcer-in-charge of the nearest police
station or to the offcer empowered under Section 53 who is obliged
to prepare an inventory of the seized contraband and then to make
an application to the Magistrate for the purposes of getting its
correctness certifed. It has been further laid down that the samples
drawn in the presence of the Magistrate and the list thereof on
being certifed alone would constitute primary evidence for the
purposes of the trial.
16. In the absence of any material on record to establish that
the samples of the seized contraband were drawn in the presence of
the Magistrate and that the inventory of the seized contraband was
duly certifed by the Magistrate, it is apparent that the said seized
contraband and the samples drawn therefrom would not be a valid
piece of primary evidence in the trial. Once there is no primary
evidence available, the trial as a whole stands vitiated.
17. Accordingly, we are of the opinion that the failure of the
concerned authorities to lead primary evidence vitiates the
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conviction and as such in our opinion, the conviction of the
appellant deserves to be set aside. The impugned judgment and
order of the High Court as well as the trial court convicting the
appellant and sentencing him to rigorous imprisonment of 10 years
with fne of Rs.1 lakh and in default of payment of fne to undergo
further imprisonment of one year is hereby set aside."
Resultantly, the Appeal has been allowed.
10. In the wake of the aforesaid position, since in the present
case, there is no compliance of Section 52-A as though there is
seizure of the contraband from the Applicant, it was not taken
to the Magistrate and samples were not drawn in his presence
and it raises a doubt about the said seizure.
Since the Applicant has already undergone a sentence of
more than 8 years and 10 months out of the sentence imposed
and his Appeal, challenging the said conviction, is pending for
adjudication in this Court, he deserve suspension of sentence
and his release on bail. Hence, the following order.
: ORDER :
(a) The sentence imposed on the Appellant by NDPS Special Judge, Thane vide judgment and order dated 01/07/2023 in NDPS Special Case No.31 of 2015 is suspended.
(b) Applicant - Sanjay Jain shall be released on bail in NDPS Special Case No.31 of 2015on furnishing P.R. Bond to the extent of Rs.50,000/- with one or two sureties in the like amount.
(c) The Applicant shall mark his attendance before the Intelligence Offcer, Narcotics Control, Mumbai on frst Monday of every trimester between 5.00 to 6.00 p.m. M.M.Salgaonkar ::: Uploaded on - 10/11/2023 ::: Downloaded on - 11/11/2023 05:14:20 ::: 9/9 4.1 IA-3456-23.odt
(d) On being released on bail, the Applicant shall furnish his contact number and residential address to the Intelligence Offcer, Narcotics Control, Mumbai and shall keep him updated, in case there is any change.
( SMT. BHARATI DANGRE, J.) M.M.Salgaonkar ::: Uploaded on - 10/11/2023 ::: Downloaded on - 11/11/2023 05:14:20 :::