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Rajasthan High Court – Jodhpur
Kailash Singh vs State Of Rajasthan (2025:Rj-Jd:31029) on 15 July, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:31029]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 909/2025
IN
S.B. Criminal Appeal (Sb) No. 960/2025
Kailash Singh S/o Shri Pur Singh, Aged About 32 Years, R/o
Maravdiya, P.s. Badisadri, Dist. Chittorgarh (Lodged In Dist. Jail.,
Pratapgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Remesh Purohit
For Respondent(s) : Mr. SS Rathore, Dy.G.A.
HON'BLE MR. JUSTICE FARJAND ALI
Order
15/07/2025
1. The instant application for suspension of sentence has been
moved on behalf of the applicant in the matter of judgment
dated 05.05.2025 passed by the learned Special Judge, NDPS
Cases, Pratapgarh in Special Sessions Trial No.16/2019
whereby he was convicted and sentenced to suffer maximum
imprisonment of 10 years’ R.I. under Section 8/15 (C) of the
NDPS Act.
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
appreciated again by this Court. He was on bail during trial
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[2025:RJ-JD:31029] (2 of 7) [SOSA-909/2025]
and did not misuse the liberty so granted to him; 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 and perused the material available on record.
5. The appeal has already been admitted for the purpose of
making further appreciation of evidence but owing to the
voluminous pendency there seems no likelihood of hearing of
the appeal in a near future. Among the other legal grounds
regarding non-compliance of mandatory provisions
particularly of 42, 50 & 52A of the NDPS Act and important
plea has been raised by Shri Ramesh Purohit, learned counsel
appearing for the applicant that five bags allegedly recovered
by the agency from the appellant but samples were not taken
from each bag separately instead thereof some material was
collected from all bags and whereafter they were mixed
together and then the samples were taken from the ad-mixer
and then sent to the FSL. No samples from the inventory
prepared was sent to the FSL for chemical examination.
6. This court has passed a detailed order in this context 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
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[2025:RJ-JD:31029] (3 of 7) [SOSA-909/2025]
issued by Government of India under Section 52A of NDPS
Act have been enumerated inter alia other aspects. The
relevant part of the said order is 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(Downloaded on 17/07/2025 at 09:37:20 PM)
[2025:RJ-JD:31029] (4 of 7) [SOSA-909/2025]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
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
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[2025:RJ-JD:31029] (5 of 7) [SOSA-909/2025]
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
7. It cannot be said with utmost certainty that each bag was
having contraband in it, and therefore, the weight of one
gunny bag 15 kgs. can also be considered for the purpose of
contraband recovered form the appellant, at this stage it can
be presumed tentatively. He had remained on bail during trial
but never ever misuse was complained of. He has no criminal
antecedent. He is a resident of Rajasthan and willing to
attend the Court proceeding whenever called upon to do so.
8. Considering the submissions of learned counsel for the parties
and looking to the totality of facts and circumstances of the
case, more particularly the facts/fact that the hearing of
appeal is likely to take further more time and considering the
overall submissions while refraining from passing any
comments on the niceties of the matter and the defects of the
prosecution as the same may put an adverse effect on
hearing of the appeal, this court is of the opinion that it is a
fit case for suspending the sentence awarded to the accused-
applicant.
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[2025:RJ-JD:31029] (6 of 7) [SOSA-909/2025]
9. 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 18.08.2025 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
addresses, they will give in writing their changed
address to the trial Court.
10. 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
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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
95-Samvedana/-
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