Ravi Kumar vs State Of J And K
2021 Latest Caselaw 595 j&K

                                                                     Serial No.518



               HIGH COURT OF JAMMU AND KASHMIR
                            AT JAMMU
                      (THROUGH VIRTUAL MODE)

                                               CRA 12/2015
                                                IA(25/2015) IA(2/2015)
                                                IA(1/2017) IA(1/2016)
                                               IA(26/2015)
                                                IA(1/2015)

Ravi Kumar                                                    ...Petitioner(s)


               Through:- Mr. Prince Khanna, Advocate

                           v/s

State of J and K                                        ....Respondent(s)

                       Through:-Mr. Aseem Sawhney, AAG



Coram:        HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                       ORDER

IA(25/2015)

1. I have heard learned counsel for the parties and perused the material on

record.

2. The applicant/appellant stands convicted for offences under

Sections8(c)/20 (b) (ii) (c) of the Narcotic Drugs and Psychotropic

Substances, Act in terms of judgment dated 25.03.2015 passed by the

learned Additional Sessions Judge (Special Judge) Kathua. In terms of order

dated 27.03.2015 passed by the said Court the applicant/convict has been

sentenced to undergo rigorous imprisonment of 10 years and a fine of Rs. 01

lac.

3. The appeal against the aforesaid judgment of the conviction and sentence

is pending before this Court for the last more than 06 years. As per the

nominal roll produced by the respondents, appellant/convict has been in

custody for about 09 years.

4. Learned counsel for the appellant has contended that keeping in view the

long incarceration of the appellant coupled with the fact that there is no

chance of hearing of appeal in near future on account of restriction on

physical hearing of cases in view of the present situation of COVID-19

pandemic, the appellant deserves to be enlarged on bail.

4. The Ld. Counsel has further contended that even on merits the appellant is

sure to succeed in the appeal. It is contended that in the instant case, the

sealed samples of the contraband alleged to have recovered from the

possession of the appellant, have remained with the police for about 08 days

before the same were sent to the FSL and that there is no evidence on record

to establish the safe custody of these samples. It has been further contended

that mandatory provisions of Section 50 of the NDPS, Act have not been

complied by the investigating agency in the instant case and on this ground

also the appellant has good chance of earning an acquittal.

5. Section 389 of Cr.P.C. governs the field relating to suspension of sentence

and grant of bail by the appellate court to convicted persons. It confers

discretionary jurisdiction upon appellate court to suspend the execution of

sentence during the pendency of appeal on valid reasons which are required

to be recorded in writing. The power must be exercised after considering the

facts and circumstances of the case objectively. It has to be shown that there

are grounds giving rise to substantial doubts about the validity of the

conviction and there is likelihood of unreasonable delay in disposal of the

appeal.

6. In the instant case, the appellant has been in custody for about 09 years

and the punishment awarded to him is 10 years imprisonment. Thus, the appellant has undergone substantial part of his sentence. There is some

substance in the contention of learned counsel for the appellant that chances

of hearing the case in near future are bleak because of the present situation

of COVID-19 pandemic which has hampered resumption of physical hearing

of the cases. The appeal is pending before this Court for the last more than

06 years and in view of the ratio laid down by the Supreme Court in Smt.

Aktheri Bi vs. State of Madhya Pardesh, Appeal (Crl) 320 of 2001, decided

on 22.03.2001,the case of the appellant for grant of bail is required to be

considered favorably on this ground alone

7. Having regard to the afore noted facts and keeping in view the contentions

raised by learned counsel for the appellant on merits of the appeal, without

making any observation thereon lest it may prejudice the case of the parties

at the time of final hearing of the appeal, a case for grant of bail in favour of

the appellant is made out. Accordingly, application is allowed and execution

of the sentence awarded against the appellant is suspended and it is directed

that he be released on bail subject to the following conditions:-

i) That he shall furnish personal bond with two sureties in the amount

of 02 lacs, each to the satisfaction of Registrar Judicial of this

Court.

ii) That he shall appear before this Court on each date of hearing

either in person or through counsel

iii) That he shall not leave the limits of Union Territory of J&K

without the prior permission of Station House Officer, Police

Station, Kathua, before whom the appellant shall appear on first

day of every month till disposal of the main appeal.

8. The application stands disposed of, accordingly.

9. Main appeal be listed for hearing on 30.09.2021.

(SANJAY DHAR) JUDGE JAMMU 03.06.2021 Bir