Gajendra Tiwari vs State
2021 Latest Caselaw 3193 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 318/2020

IN

S.B. Criminal Appeal No.255/2020

Gajendra Tiwari S/o Om Prakash, Aged About 20 Years, By Caste Brahmin, R/o Ward No. 1, Dev Nagar, Purani Abadi, District Sri Ganganagar (Raj.). (At Present Lodged In District Jail Sriganganagar).

----Petitioner Versus State, Through P.p.

                                                                 ----Respondent


For Petitioner(s)        :     Mr. ML Bishnoi
For Respondent(s)        :     Mr. Vikram Sharma, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

05/02/2021 In wake of onslaught of COVID-19, abundant caution is

being taken while hearing the matters in Court.

Heard learned counsel for the parties and perused the

impugned order.

Counsel for the appellant submits that main accused in the

case are Amandeep and Raju Singh.

Counsel for the appellant has drawn attention of Court to the

statement of Investigating Officer (PW-3), in which, it is clearly

reflected that present appellant was not caught on the spot but

has been arrayed as accused only on the statement of co-accused.

(2 of 5) [SOSA-318/2020]

Counsel for the appellant further submits that there is no

independent corroborative evidence to the statement of

co-accused which could sustain conviction of the appellant.

Counsel for the appellant has further drawn attention of

Court to the statement of PW-6, the Constable, who identified the

present appellant. He himself admitted that he knew that there is

one Gajendra Tiwari in the area but the basis of his saying was the

statement of co-accused itself.

Counsel for the appellant has relied upon the judgment of

Co-ordinate Bench of this Court dated 11.12.2019 passed in SB

Criminal Misc Suspension Of Sentence Application (Appeal) No.

69/2019, which reads as follows:-

"Heard. Perused the material available on record. The applicant- appellant has been convicted for offences under Sections 8/15 and 8/25 of the NDPS Act by judgment dated 19.12.2018 passed by learned Special Judge, NDPS Act Cases, Bhilwara in Sessions Case No.60/2017.

Learned Public Prosecutor Shri Anees Bhurat has chosen not to file reply to the instant application for suspension of sentences and proposes to argue the matter orally. He has also placed on record the factual report of the SHO concerned as per which the applicant- appellant does not have any criminal antecedents.

As per the prosecution case, a consignment of poppy-straw weighing 344 kgs. & 900 grams was recovered from Pick Up (No.RJ 06 GB 5039) of which the applicant-appellant is said to be the registered owner. It is an admitted case of the prosecution that the appellant was not present in the vehicle when the seizure was made. Shri M.L. Bishnoi, Advocate drew the Court's attention to the following admission of the IO Baluram (PW.10) in his cross-examination :-

";g dguk lgh gS fd esjs vuqla/kku esa lgvfHk;qDr dh lwpuk ds vfrfjDr ,slk dksbZ nLrkosth lk{; ,oa ekSf[kd lk{; ugha vk;k fd eqyfte dSyk"k dh lpsru [email protected] esa gks fd mldh fidvi xkM+h esa fnukad 02-04-2017 o 03-04-2017 dks MksMk pwjk dk ifjogu fd;k tk jgk gksA ;g dguk xyr gS fd eSaus lgvfHk;qDr dh lwpuk ,oa vkjlh vkWuj ds vk/kkj ij gh dSyk"k dks eqyfte ekuk gSA"

(3 of 5) [SOSA-318/2020]

and urged that the prosecution failed to bring any evidence on record so as to prove that the poppy-straw was being plied in the offending vehicle with the conscious knowledge or connivance of the appellant herein. He thus, urges that ex-facie both the offences i.e., Sections 8/15 and 8/25 of the NDPS Act are not prima facie made out against the appellant herein and implored the Court to accept the instant application for suspension of sentences and extend indulgence of bail to the applicant-appellant during the pendency of the appeal.

Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by appellant's counsel. However, he too is not in a position to dispute the fact that the appellant was not found present in the offending vehicle of which he is the registered owner when the seizure was effected. It is also virtually an admitted position that no positive evidence was collected by the IO during investigation that the consignment of poppy-straw was being transported in the offending vehicle with the conscious knowledge or connivance of the appellant herein.

In this back ground, I am of the opinion that the applicant- appellant has available to him strong grounds so as to challenge the impugned judgment of conviction. The conditions of Section 32A read with Section 37 of the NDPS Act are also satisfied in the case at hand.

Accordingly, the instant application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Special Jduge, NDPS Cases, Bhilwara vide judgment dated 19.12.2018 in Sessions Case No.60/2017 against the appellant-applicant Kailash @ Kailashchandra S/o Shri Ladu shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail subject to the condition that he shall furnish personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 13.01.2020 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

1. That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.

(4 of 5) [SOSA-318/2020]

3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused- applicant(s) was/were 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(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail."

Learned Public Prosecutor opposed the application.

Having considered all the facts and circumstances of case,

without making any observation on the merits of case, this Court

is inclined to suspend the sentence of the appellant(s).

Accordingly, this application for suspension of sentences is

allowed and it is directed that the sentences awarded to appellant

- Gajendra Tiwari S/o Om Prakash by the learned Special

Judge, NDPS Act Cases, Sri Ganganagar vide by his judgment

dated 16.01.2020 in Sessions Case No.47/2018 (CIS No.47/2018)

shall remain suspended till final disposal of aforesaid appeal and

he shall be released on bail subject to the condition that he

deposits 50% of the fine amount imposed by the learned trial

court, within four weeks, and upon his furnishing a personal bond

in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each

to the satisfaction of learned trial court for his appearance before

this Court on 09.03.2021 and whenever called upon to do so till

the disposal of the appeal on the conditions inidcated below:-

(5 of 5) [SOSA-318/2020]

(1) That he/she/they will appear before the trial court in

the month of January of every year till the appeal is

decided.

(2) That if the applicant(s) changes the place of residence,

he/she/they will give in writing his/her/their changed

address to the trial court as well as to the counsel in the

High Court.

(3) Similarly, if the sureties change their address(s), they

will give in writing their changed address(s) to the trial

court.

The learned trial court shall keep the record of attendance of

the accused-applicant(s) in a separate file. Such file be registered

as Criminal Misc. Case related to original case in which the

accused-applicant(s) was/were 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(s) does not appear before the trial

court, the learned trial Judge shall report the matter to the High

Court for cancellation of bail.

(DR.PUSHPENDRA SINGH BHATI),J.

52-Sanjay/-

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