Rajasthan High Court – Jodhpur
Surjeet Singh vs State Of Rajasthan on 23 May, 2025
Author: Farjand Ali
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Suspension of Sentence Appln. (Appeal)
No.718/2025
In
S.B. Criminal Appeal (Sb) No. 783/2025
Surjeet Singh S/o Resham Singh, Aged About 22 Years, Resident
Of Memda Police Station Ratiya District Fatehbad Haryana. At
(Present Lodged In Sub Jail Taranagar)
----Appellant
Versus
State Of Rajasthan, Through Pp
----Respondent
For Appellant(s) : Mr. Prakash Chandra Bishnoi
For Respondent(s) : Mr. S.S. Rathore, Dy.G.A.
HON'BLE MR. JUSTICE FARJAND ALI
Order
23/05/2025
1. The instant application for suspension of sentence has been
moved on behalf of the applicant in the matter of judgment dated
02.04.2025 passed by the learned Special Judge NDPS Act Cases,
Taranagar, District Churu in Sessions Case No.05/2014 whereby
he was convicted under Section 8/15 of the NDPS Act and
sentenced to suffer fourteen years’ RI along with a fine of
Rs.1,50,000/- and in default to further undergo two years’ SI.
2. It is contended by the learned counsel for the appellant 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. The
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appellant-applicant is in jail from 13.03.2014 to 06.03.2020 and
now after passing the judgment aforesaid. 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 by learned counsel for 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 reveals that 15 plastic bags were
recovered from the vehicle and each bag was having 20 kg
weight. The team opened all the bags, lowered the substance on
a tripal and whereafter the entire commodity of 15 bags were
mixed together and the samples were taken from the ad-
mixuture 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 Nos.1/1988 & 1/1989 issued by the Government
Of India. The petitioner has remained in custody for around six
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
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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
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.
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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
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
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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 small plastic polythenes
rather samples were drawn from the admixtures contained in the
15 plastic bags.
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 six 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 389 Cr.P.C. is allowed and it is ordered that the
sentence passed by learned trial court, the details of which are
provided in the first para of this order, against the appellant-
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 26.06.2025 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.
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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
101-Mamta/-
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