[2023:RJ-JD:32366] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension of Sentence Application No.999/2023 IN S.B. Criminal Appeal (Sb) No. 1607/2023 Daljeet Singh S/o Harbansh Singh, Aged About 32 Years, R/o Punjabi Bagh Samrala Road Gali No. 2 Khanna Ps City Khanna Dist. Ludiana Punjab (At Present Lodged In Sub Jail Rajgarh)
----Appellant Versus State Of Rajasthan, Through Pp
----Respondent For Appellant(s) : Mr. Vikas Bijarnia For Respondent(s) : Mr. A.R. Choudhary, P.P.
Mr. Brish Mohan Aswal HON'BLE MR. JUSTICE FARJAND ALI Order 03/10/2023
1. The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 25.07.2023 passed by the learned Special Judge, NDPS Cases No.2, Rajgarh District Churu in Sessions Case No.03/2022 whereby he was convicted and sentenced to suffer maximum imprisonment of 10 years under Sections 8/15 & 8/25 of the NDPS Act.
2. It is contended on behalf of the applicant that the appellant has not committed an offence and falsely been implicated in this matter. The mandatory provisions of the NDPS Act case have not been complied with. The samples have not been collected as per the standing order and guidelines issued by the Government of India being Standing Order No.1/1988. It is the case of the prosecution that two gunny bags were recovered by the police (Downloaded on 12/11/2023 at 06:49:18 AM) [2023:RJ-JD:32366] (2 of 4) when the vehicle was intercepted and got checked by the police team. Each gunny bag was having 24 and 28 small bags. But the samples from only two bags weighing 900 gms. was taken and thus, it cannot be presumed safely that every bag was having contraband in it and at the same time the possibility cannot be ruled out that only two from which samples were taken and sent for chemical examination; were having contraband and rest of the bags having neutral substance. The total weight of alleged recovery is not more than 56 kgs. Thus, besides the lethal defect in case of the prosecution there is serious anomaly and discrepancy in between the prosecution witnesses which go to the root of the case making the entire case highly dubious. It is contended 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. The sentence of the accused-petitioner has already been suspended by the trial court. He was on bail during trial 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 petitioner on application for suspension of sentence.
4. Heard and perused the material available on record. (Downloaded on 12/11/2023 at 06:49:18 AM)
[2023:RJ-JD:32366] (3 of 4)
5. Considering the submissions of learned counsel for the parties and looking to the totality of facts and circumstances of the case, taking into account the submission that 900 grms. of two bags samples were taken and no sample from each bag individually were taken for chemical examination, more particularly the facts/fact that the accused-petitioner was on bail during the course of trial and 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-petitioner.
6. 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, Rajgarh District Churu who passed the impugned order 25.07.2023 in Sessions Case No.03/2022 against the petitioner- applicant- Daljeet Singh S/o Harbansh Singh 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 03.11.2023 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. (Downloaded on 12/11/2023 at 06:49:18 AM)
[2023:RJ-JD:32366] (4 of 4) (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.
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 9-Samvedana/-
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