Rajasthan High Court – Jodhpur
Anil Kumar vs State Of Rajasthan (2025:Rj-Jd:29865) on 7 July, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:29865]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc 2nd Suspension Of Sentence Application
(Appeal) No. 1759/2024
In
S.B. Criminal Appeal No.
Anil Kumar S/o Sahab Ram, Aged About 30 Years, R/o Baseer
Police Station Tibbi, District Hanumangarh. (Presently Lodged At
District Jail Hanumangarh Since 16-01-2024)
----Petitioner
Versus
State Of Rajasthan, Through Pp, Dist. Hanumangarh
----Respondent
For Petitioner(s) : Mr. Rajesh Joshi Sr. Advocate assisted
by Ms. Heli Pathak
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
07/07/2025
1. The instant application for suspension of sentence has been
moved on behalf of the applicant in the matter of judgment dated
16.01.2024 passed by the learned Addl. District & Sessions Judge
(NDPS Act Cases) Sangaria in Sessions (NDPS) Case No.11/2017
whereby he was convicted under Sections 8/21 & 8/25 of the
NDPS Act and sentenced to suffer ten years’ RI along with a fine
of Rs.1,00,000/- and in default to further undergo six months’ RI
on each count.
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
(Downloaded on 10/07/2025 at 09:31:45 PM)
[2025:RJ-JD:29865] (2 of 7) [SOSA-1759/2024]
conclusion of guilt, therefore, the same is required to be
appreciated again by this court being the first appellate Court. The
appellant-applicant is in jail and 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 the case of the
prosecution suffers from serious procedural irregularities and legal
infirmities, which render the applicant’s conviction highly
debatable and arguable. The applicant, therefore, has a strong
prima facie case in appeal. One of the principal grounds relates to
the manner of seizure, which has been seriously disputed and
appears to be in non-compliance with the Standing Orders issued
by the Government of India, namely Standing Order No. 1/88 and
Standing Order No. 1/89. The alleged seizure was carried out by
PW9 Mohar Singh, and according to his testimony, the seized
articles were sealed for the purpose of chemical examination.
5.1. However, during the course of cross-examination, the witness
admitted that the seal affixed to the samples should either bear
the name of the police station or the personal name or initials of
the seizing officer. In this case, the seal bore the impression “OP,”
but it was never clarified, either during examination or cross-
(Downloaded on 10/07/2025 at 09:31:45 PM)
[2025:RJ-JD:29865] (3 of 7) [SOSA-1759/2024]examination, whether “OP” stood for the name of the police
station or referred personally to the seizing officer. Ordinarily, the
seizing officer puts a seal bearing his own name, which, in this
case, should have been “MS” or “Police Station Sangariya”,
however, that is not the case here. What abbreviation the seal
“OP” represents, or who affixed the seal, are two serious
questions that cast doubt on the genuineness and fairness of the
investigation. This unexplained and uncorroborated detail raises
serious doubts about the authenticity and credibility of the sealing
process. Additionally, the seal was found to be broken, and the
specimen seal was neither legible on the seizure memo nor on the
memo of the specimen seal. Moreover, the same was not clearly
linked with the actual seals on the articles. These deficiencies
further compromise the evidentiary value of the seizure.
5.2. The testimony of PW6 Rameshwar Lal, the then In-charge of
the Malkhana (police storage facility), further weakens the
prosecution case. During cross-examination, PW6 admitted that
there was no endorsement in the Malkhana Register (Exhibit P17)
indicating the date and time at which the seized articles were
deposited. He also conceded that the register did not contain any
mention of the seal that was affixed on the seized articles at the
time of deposit. These lapses indicate a serious breach of the
chain of custody protocol, thereby undermining the integrity of the
recovered material. In this context, it is apposite to refer to the
observations made by the Hon’ble Supreme Court in Valsala v.
State of Kerala, AIR 1994 SC 117, wherein the Court held as
under:
(Downloaded on 10/07/2025 at 09:31:45 PM)
[2025:RJ-JD:29865] (4 of 7) [SOSA-1759/2024]
“4. We have seen the report of the Chemical Examiner and there no
doubt it is mentioned that one sealed parcel was received containing a
powder and it was analysed to be Brown Sugar. But from the records it
is clear and it is also noted by both the courts below that the seized
article was produced in the court only on 14.1.88 i.e. after a period of
more than three months and there is no evidence whatsoever at all to
show with whom the seized article was lying and even assuming that it
was in the custody of P.W.6,the Officer-in-charge of the Police Station
who seized it, there is again nothing to show whether it was sealed and
kept there. The learned Counsel for the State no doubt argued that the
provisions of Section 55 of the Act are not mandatory but only
directory. We need not go into this legal question in this case. Suffice it
to say that the article seized appears to have been not kept in proper
custody and proper form so that the court can be sure that what was
seized only was sent to the Chemical Examiner. There is a big gap and
an important missing link. In the mahazar Ex.P.2 which is immediately
said to have been prepared, there is nothing mentioned as to under
whose custody it was kept after seizure. Unfortunately for the
prosecution even P.W.6 does not say that he continued to keep it in his
custody under seal till it was produced in the court on 14.1.88. The
evidence given by P.W.6 Police Sub-Inspector, who seized the article is
absolutely silent as to what he did with the seized article till it was
produced in the court. As a matter of fact he did not produce it in the
court. P.W.3, A.S.I. is supposed to have produced the same in the
court. But P.W.3 does not say anything about this. It is only P.W.7. the
Circle Inspector who comes into the picture at a later date, who
admitted in the cross-examination that the seized article was sent by
P.W.3 (A.S.I.) to the court and P.W.7 in his cross-examination further
admitted that he did not even see if the recovered material object was
sealed but still he claims that he made the necessary application for
sending the material object for chemical examination and it is only
through P.W.7 that the Chemical Examiner’s Report is marked. P.W.7
further admitted that he did not even know when it reached the court
We are constrained to say that the investigation in this case has been
perfunctory and on important aspects the evidence of the concerned
officers is highly discrepant and unconvincing and does not throw much
light. Therefore the evidence adduced is wholly insufficient to conclude
that what was seized from the appellant alone was sent to the Chemical
Examiner. Though this is purely a question of fact but this is an
important link. Both the courts below have not examined this aspect in
a proper perspective. No doubt the trafficking in narcotic drugs is a(Downloaded on 10/07/2025 at 09:31:45 PM)
[2025:RJ-JD:29865] (5 of 7) [SOSA-1759/2024]menace to the society but in the absence of satisfactory proof, the
courts can not convict. ”
The above observations by the Hon’ble Supreme Court are
squarely applicable to the facts of the present case. Just as in
Valsala, where the prosecution failed to account for the custody
and sealing of the seized article from the time of seizure till
production in court, the instant case too suffers from similar
infirmities. The admission by PW6 regarding the absence of any
entry in the Malkhana Register concerning the date, time, and
sealing particulars of the deposited articles creates a serious doubt
about the sanctity of the chain of custody. In both cases, the
prosecution’s inability to establish a continuous and unbroken link
of possession and sealing of the seized material renders the
integrity of the evidence doubtful, thereby striking at the very root
of the prosecution’s case.
5.3. More significantly, compliance with the provisions of Section
52A of the Narcotic Drugs and Psychotropic Substances Act, 1985
(NDPS Act), was made only after a delay of two years. The
inventory prepared under Section 52A was neither proved by the
prosecution nor tendered into evidence through the concerned
Magistrate since not produced as a witness during trial. In
addition, material discrepancies were observed between the
inventory under Section 52A and other contemporaneous
documentation relating to the seizure and sampling of the narcotic
substance.
5.4. The Investigating Officer’s own statement introduces further
uncertainty about the procedure adopted for sealing and sampling.
(Downloaded on 10/07/2025 at 09:31:45 PM)
[2025:RJ-JD:29865] (6 of 7) [SOSA-1759/2024]
One of the essential purposes of Section 52A is to facilitate the
possibility of sending representative samples to the Forensic
Science Laboratory (FSL) for reanalysis, if necessary. In the
present case, the integrity of that process appears to have been
irreversibly compromised.
5.5. In view of the above-noted procedural lapses, inconsistencies
in the sealing and deposit process, absence of proper compliance
with Standing Orders and Section 52A of the NDPS Act, and
prolonged custody of the petitioner and further considering that
hearing of the appeal would likely to take a long time thus this
court deems it a fit case for suspending the sentence awarded to
the accused-appellant.
6. Accordingly, the second 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 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.(Downloaded on 10/07/2025 at 09:31:45 PM)
[2025:RJ-JD:29865] (7 of 7) [SOSA-1759/2024]
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.
7. 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
86-Mamta/-
(Downloaded on 10/07/2025 at 09:31:45 PM)
Powered by TCPDF (www.tcpdf.org)
[ad_1]
Source link