Rajasthan High Court - Jodhpur
Ashok vs State Of Rajasthan on 6 December, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2023:RJ-JD:42061]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. II Suspension Of Sentence Application
(Appeal) No. 219/2023
in
S.B. Criminal Appeal No.1293/2021
Ashok S/o Mangi Lal Sharma, Aged About 47 Years, R/o Bengu,
Ps Bengu, District Chittorgarh, Raj.
----Petitioner
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Petitioner(s) : Mr. Ram Niwas
For Respondent(s) : Mr. Laxman Solanki, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order Reserved on 04/12/2023 Pronounced 06/12/2023
1. This criminal misc. second application for suspension of sentence under Section 389 of the Code of Criminal Procedure has been filed seeking suspension of sentence awarded to the applicant-appellant vide the impugned judgment of conviction and order of sentence dated 17.11.2021 passed by the learned Special Judge, NDPS Act Cases No.1, Chittorgrah in Sessions Case No.58/2007 (CIS No. 550/2007), whereby while convicting the applicant-appellant for the offences under Sections 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'), the applicant-appellant was ordered to undergo 14 years' rigorous imprisonment, alongwith a fine of Rs.1,50,000/- (Downloaded on 06/12/2023 at 09:01:14 PM) [2023:RJ-JD:42061] (2 of 5) [SOSA-219/2023] each, in default of payment of which, applicant-appellant was ordered to undergo further one year's rigorous imprisonment.
2. Learned counsel for the applicant-appellant submitted that co-accused namely Ghewar Ram was already enlarged on bail by this Hon'ble Court and the case of the present applicant-appellant is on a similar footing, and therefore, the sentence awarded to him vide the impugned judgment deserves to be suspended. 2.1. Learned counsel further submitted that the PW-3, PW-4 and PW-5 had already turned hostile and there is no strong evidence against the applicant-appellant so as to justify continuance of this custody in this case.
2.2. Learned counsel also submitted that the concerned police authority at time of collecting the samples of the contraband in question, mixed the samples thereof, and therefore, the seizure in question was not conducted as per the provisions of the NDPS Act. 2.3. Learned counsel further submitted that the concerned police authority sent the sample of the contraband in question after 5 days of collection. It was also submitted that the concerned police authority violated the mandatory provisions of the NDPS Act and it was sufficient for suspension of the sentence awarded to the applicant-appellant vide the impugned judgment. 2.4. In support of such submissions, learned counsel relied upon the following judgments:-
(a) Simarnjit Singh Vs State of Rajasthan (Criminal Appeal No. 1443 of 2023, decided on 09.05.2023) by the Hon'ble Apex Court;
(b) Sarija Banu (A) Janarthani @ Janani & Anr. Vs State (2004) 12 SCC 266;
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(c) Om Prakash Vs State of Rajasthan (S.B. Criminal Misc II Suspension of Sentence Application (Appeal) No. 191/2018, decided on 16.02.2021) by a Coordinate Bench of this Hon'ble Court;
(d) Shahrukh Khan Vs State (S.B. Criminal Misc Suspension of Sentence Application (Appeal) No. 302/2020, decided on 07.05.2020) by a Coordinate Bench of this Hon'ble Court;
(e) Vinod Gupta Vs State of Rajasthan (S.B. Criminal Misc 4 th Bail Application No. 14283/2022, decided on 20.04.2023) by this Hon'ble Court;
(f) Nagu Singh Vs State of Rajasthan (S.B. Criminal Appeal No. 931/2015, decided 10.05.2016) by a Coordinate Bench of this Hon'ble Court;
(g) Rama Ram Vs State of Rajasthan (S.B. Criminal Misc 2 nd Bail Application No. 11205/2021, decided on 01.09.2021) by Coordinate Bench of this Hon'ble Court;
(h) State of Rajasthan Vs Jag Raj Singh @ Hansa (Criminal Appeal No. 1233/2006, decided on 29.06.2016) by the Hon'ble Apex Court.
3. On the other hand, learned Public Prosecutor, while opposing the suspension of sentence application, submitted that the applicant-appellant was convicted by the learned Trial Court after taking into due consideration the overall facts and circumstances of the case and the evidences placed on record before it. Thus, the present second application for suspension of sentence ought not to be entertained by this Court.
3.1. It was further submitted that the concerned police authority followed all the procedures as provided under the NDPS Act at the (Downloaded on 06/12/2023 at 09:01:15 PM) [2023:RJ-JD:42061] (4 of 5) [SOSA-219/2023] time of search and seizure of the contraband in question, and therefore, applicant-appellant is not entitled for any indulgence by this Court in this case.
4. Heard learned counsel for the parties as well as perused the record of the case as well as the judgments cited at the Bar.
5. This Court observes that the applicants-appellants were convicted for the offences under Sections 8/15 of the NDPS Act, and that, the first application for suspension of sentence was rejected by this Court vide order dated 28.04.2022 passed in S.B. Criminal Misc. Suspension of Sentence Application (Appeal) No.109/2022.
6. This Court further observes that total 5 quintals 75 kgs. Doda Post (poppy straw) was recovered from the applicant- appellant and other co-accused and thereafter, the applicant- appellant was convicted vide the impugned judgment passed by the learned Trial Court.
7. This Court also observes that the applicant-appellant was convicted in connection with an offence of a very serious nature and a very large quantity of contraband was recovered in this case from the present applicant-appellant, and on that count also, he is not entitled for any indulgence by this Court in the present application.
8. This Court further observes that previously, the first suspension of sentence was dismissed by the this Court, and no material has been placed before this Court on behalf of the applicant-appellant to show any subsequent development or change in circumstances, which could entitle the applicant- (Downloaded on 06/12/2023 at 09:01:15 PM)
[2023:RJ-JD:42061] (5 of 5) [SOSA-219/2023] appellant for any indulgence by this Court in the present application, at this stage.
9. The judgments cited at the Bar on behalf of applicant- appellant also do not render any assistance to his case in the present application.
10. Consequently, the present second application for suspension of sentence is dismissed.
(DR.PUSHPENDRA SINGH BHATI),J SKant/-
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