HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Application for Suspension Of Sentence No. 255/2023 In S.B. Criminal Appeal No. 348/2023 Mukesh Kumar S/o Shiv Kumar Joshi, Aged About 38 Years, R/o Pathiknagar Ps Subhash Nagar Bhilwara Dist. Bhilwara (At Presently Appellant Is Lodged In Dist. Jail Chittorgarh)
----Appellant Versus State Of Rajasthan, Through Pp
----Respondent For Appellant(s) : Mr. Manish Kumar Pitaliya For Respondent(s) : Mr. A.R. Choudhary, P.P.
HON'BLE MR. JUSTICE FARJAND ALI Order 04/04/2023 The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 23.01.2023 passed by the learned Special Judge, NDPS Cases No.2, Chittorgarh in Sessions Case No.35/2019 (88/2018) whereby he was convicted and sentenced to suffer rigorous imprisonment of 12 years along with a fine of Rs.2,00,000/- under Section 8/20(A)(II)(C) of the NDPS Act, 1985.
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 being the first appellate Court. Hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted. (Downloaded on 04/04/2023 at 10:31:54 PM)
(2 of 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.
Heard learned counsel for the parties and perused the material available on record.
A perusal of the judgment clearly reflects that the recovered contraband includes stem, stalks and leaves. There is no mentioning of having flowering and fruiting tops, thus, the ground raised by learned counsel for the appellant required to be appreciated again by this Court being the first appellate Court.
The submission made by learned counsel for the appellant seems to be worth considering that the allegedly recovered contraband does not come within the purview of the term "Ganja" as defined under Section 2 of the NDPS Act. He submits that only the flowering and fruiting tops of 'Cannabis' plant can be considered to the contraband Ganja. However, the leaves comes within the definition of Bhang as defined under the Rajasthan Excise act, thus, the seeds, stems and other part of the plant would not covered under the term "Ganja" as defined under NDPS Act.
Considering the submissions of learned counsel for the parties and looking to the totality of facts and circumstances of the case, more particularly the fact that the applicant is behind the bars from 25.04.2018 and hearing of the appeal would likely to take time as well as considering the overall submissions while refraining from passing any comments on the niceties of the (Downloaded on 04/04/2023 at 10:31:54 PM) (3 of 3) 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-appellant.
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 Special Judge, NDPS Cases No.2, Chittorgarh who passed the impugned order 23.01.2023 in Sessions Case No. 35/2019 (88/2018) against the appellant- applicant- Mukesh Kumar S/o Shiv Kumar Joshi 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 05.05.2023 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.
(FARJAND ALI),J 13-divya/-
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