Patna High Court - Orders
Shakeel Ahmad vs The State Of Bihar on 20 April, 2022
Author: A. M. Badar
Bench: A. M. Badar, Prabhat Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1363 of 2018
Arising Out of PS. Case No.-13 Year-2014 Thana- D.R.I District- Patna
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Shakeel Ahmad, S/o Late Ahmad Bux, Resident of Mohalla-New Seelampur,
P.S. New Seelampur,Distt.-New Delhi-110053
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ansul, Advocate
Mr. Nafizuoua, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, APP
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CORAM: HONOURABLE MR. JUSTICE A. M. BADAR
and
HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE A. M. BADAR)
7 20-04-2022I.A. No. 01 of 2020 This is an application for suspension of sentence and for releasing the applicant/appellant on bail during pendency of the appeal filed by him.
The applicant/appellant is convicted of the offence punishable under Section 21(C) of the N.D.P.S. Act and he is sentenced to suffer rigorous imprisonment for 14 years apart from imposition of fine of Rs. 1,00,000/- and in default to undergo further simple imprisonment for one year.
The appellant was held to be in possession of 5019 Grams of Opium.
Heard both sides.
Patna High Court CR. APP (DB) No.1363 of 2018(7) dt.20-04-2022 2/5 The learned counsel for the applicant/appellant argued that initially the application for suspension of sentence was not pressed and now the same is being pressed. It is further argued that report of Forensic Science Laboratory is not mentioning the fact that the seized substance is containing more than 0.2% of Morphine. For determination of the Morphine contains in packets sent for chemical analysis, the Forensic Science Laboratory had directed the Investigating Officer to forward the samples to any other Government Recognized Laboratory. With this, the learned counsel for the applicant/appellant argued that the offence itself is not proved and therefore, the applicant/appellant who has undergone seven years of the sentence imposed on him is entitled to be released on bail.
The learned Prosecutor has not disputed the fact that the Forensic Science Laboratory has not determined the percentage of Morphine in the samples sent for forensic report but has argued that the offence is serious and is held to be proved by the learned trial court.
We have considered the submissions so advanced. We have also perused the report of the Forensic Science Laboratory shown to us by the learned counsel for the applicant/appellant as well as relevant material.
Patna High Court CR. APP (DB) No.1363 of 2018(7) dt.20-04-2022 3/5 According to the prosecution case, on the basis of secret information, the applicant/appellant came to be accosted and he was found to be possessing packets containing 5019 Grams of Opium. Samples were taken and those were sent for chemical analysis. The relevant portion of report of Forensic Science Laboratory reads thus;
"On opening each of the five sample packets each sample was found kept in a colourless transparent plastic pouch marked as "A2", "B2", "C2", "D2" and "E2" respectively. Each sample is in the form of dark brown coloured mass. On the basis of chemical and chromatographic examinations it is concluded that each of the five samples answers positive tests for the presence of Morphine.
For the determination of the Morphine content in each of the five samples, these may be forwarded to any other Government Recognized Laboratory".
Section 2(xv) of the Narcotic Drugs and Psychotropic Substance Act, 1985 defines the term "opium". The definition reads thus;
(a) the coagulated juice of the opium poppy; and
(b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent. of morphine;"
It is thus clear from the definition of the Opium that Patna High Court CR. APP (DB) No.1363 of 2018(7) dt.20-04-2022 4/5 the stuff which was seized by the prosecution must be proved to be coagulated juice of the Opium or any mixture of such juice with some other material having Morphine content in excess of 0.2%.
In the case in hand, the report of the Forensic Science Laboratory merely shows that the samples sent for chemical analysis came to be tested positive for presence of Morphine. However the Forensic Science Laboratory did not determine percentage of Morphine in the samples sent by the Investigator. It had directed the Investigator to forward those samples for determination of Morphine content to any other Government Recognized Laboratory.
Moreover, the applicant/appellant has already undergone sentenced of more than seven years. The appeal is not likely to be heard in near future.
Considering the nature of evidence available on the record of the trial court as well as the quantum of sentence are already undergone by the applicant/appellant so also the fact that the appeal may not be heard in near future. Therefore, the following orders:
1. The substantive sentence of imprisonment imposed on the appellant is suspended and he is directed to be released Patna High Court CR. APP (DB) No.1363 of 2018(7) dt.20-04-2022 5/5 on bail on executing P.R. bond of Rs.1,00,000/- (Rupees One Lac) and on furnishing two sureties of the like amount to the satisfaction of the learned trial court in connection with Special Case No. 82 of 2014, till the disposal of the instant appeal.
During pendeny of the appeal, the recovery of fine is stayed.
2. The applicant/appellant is directed to cooperate this Court for expeditious disposal of the appeal.
Accordingly, I.A. No. 01 of 2020 stands disposed of.
(A. M. Badar, J)
Bhardwaj/- ( Prabhat Kumar Singh, J)
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