Jatinder Singh vs Ut Of J&K & Anr
2023 Latest Caselaw 372 j&K

                                                                      Sr.No. 15
               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                               AT JAMMU

                                                   CrlA(S) No. 18/2022
                                                   CrlM No. 1839/2022

Jatinder Singh                                                       ....Petitioner (s)

                   Through :- Mr. Prince Khanna, Advocate.

         V/s

UT of J&K & Anr.                                                    ....Respondent(s)


                   Through :- Mr. Sumeet Bhatia, GA.
Coram: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE

                                     ORDER

CrlM No. 1839/2022

1. The appellant/applicant has moved the instant Criminal Miscellaneous

Application for suspension of sentence imposed upon him and also for granting

him bail on the ground that he is likely to succeed in this appeal, as he has been

convicted for a higher offence than he was charge-sheeted by the trial Court,

which is not permissible in law.

2. Pursuant to notice, the respondents have filed the objections to this

application, asserting therein that the appellant has been rightly convicted since

commercial quantity of the poppy straw had been found from his possession, as

such, the trial Court while passing the detailed judgment, has recorded the

conviction touching all aspects of the evidence led before the Court during trial

and prayed that the application be rejected.

3. Learned counsel for the appellant/applicant submits that the appellant

has been charge-sheeted for the offences punishable under Section 15 (b) read

with Section 8 of the Narcotic Drugs and Psychotropic Substances Act

(hereinafter referred to as the "Act"), whereas he has been convicted under

Section 15(c) read with Section 8 of the Act and sentenced to undergo rigorous

imprisonment of ten years and to pay fine of ₹2,00,000/- alongwith the

co-accused, who has been charge-sheeted and convicted for the commission of

offences involving commercial quantity.

4. Learned counsel for the respondents has vehemently opposed the

plea for suspension of sentence and grant of bail on the count that the appellant

cannot be admitted to bail on the principles of innocence and the same is absent

in view of conviction recorded against him by the trial Court and finally prayed

that the application be rejected and the appeal filed by the appellant be

considered to be disposed of on its own merits.

5. Heard and considered.

6. It is settled law that the accused can be convicted for an offence, of

which he has been charged or for an offence, which is of lesser severity based on

the evidence led during trial, however, he/she cannot be convicted for an offence

involving higher sentence. The appellant/applicant during trial was also

admittedly stated to have been admitted to bail and has been now in custody

since his conviction.

7. Having regard to the submissions made at the Bar and, particularly, as

afore-stated, this Court is of the considered opinion that the appellant/applicant

has made out a case of suspension of sentence and grant of bail. The application

is, thus, allowed and the sentence awarded to the appellant/applicant is

suspended during the pendency of this appeal, as a result, the appellant/applicant

is also admitted to bail on furnishing personal bond to the tune of ₹ 1,00,000/-

and two sureties of the like amount to the satisfaction of the Registrar Judicial of

this Court, with further condition that he shall remain present on all dates of

hearing before this Court, without fail.

8. Application is, accordingly, disposed of.

CrlA(S) No. 18/2022

Trial Court record be summoned.

List on 17.04.2023, awaiting trial Court record.

(M A CHOWDHARY) JUDGE Jammu:

24.02.2022 Ram Krishan