Rajasthan High Court - Jodhpur
Devilal vs State Of Rajasthan on 8 July, 2021
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 943/2018
Devilal, Aged About 48 Years, B/c Jat, R/o Badla Ka Jhopra, P.s.
Kotdi, Dist. Bhilwara (Presently In Judicial Custody In Central
Jail, Ajmer)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Mangilal Bishnoi
For Respondent(s) : Mr. Mohd. Javed Gauri, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment
08/07/2021
The applicant-appellant herein stands convicted for the
offence under Section 8/15 of the NDPS Act vide judgment dated
12.09.2018 passed by learned Special Judge, NDPS Cases,
Bhilwara in Sessions Case No.10/2017 and has been sentenced to
undergo ten years' RI and fine of Rs.1,00,000/-. He has preferred
the instant application under Section 389 CrPC seeking suspension
of sentences awarded to him by the trial court.
Heard learned counsel for the parties and perused the
material available on record.
Learned Public Prosecutor has placed on record the report of
the SHO PS Badliyas District Bhilwara as per which, the petitioner
does not have any criminal antecedents. Considering the case on
merits, it becomes clear that Yashdeep Bhalla, SHO PS Kotadi,
District Bhilwara received an information on the basis whereof he
(2 of 4) [SOSA-943/2018]
proceeded to a hut/bada in the Village Badla Ka Kheda purported
to be in possession of the appellant herein and recovered
contraband styled to be poppy-straw weighing 99 kilograms.
However, the appellant was not found at the spot. Accordingly,
charge-sheet was filed in his absence. The appellant was arrested
after more than five years i.e., 11.08.2016 and thereafter the trial
was undertaken and he has been convicted and sentenced as
above.
Shri Vishnoi contends that there is no evidence whatsoever
to show that the place from where recovery was made was in
exclusive possession or ownership of the accused. He submits that
only the certificate (Ex.P/33) issued by the Sarpanch Smt Meena
Kanwar (PW.12) has been relied upon to held that the hut in
question was in possession of the accused. However, he pointed
out that the certificate is very vague inasmuch as the Sarpanch
only verified the fact that the accused was a resident of Village
Badla Ka Kheda. He further pointed out that when Muddamal
articles and the samples were produced in the trial court during
the evidence of Seizure Officer Shri Yashdeep Bhalla, it came to
light that none of them could be identified or linked with the case
at hand. He thus, urges that the appellant deserves indulgence of
bail in this case.
Learned Public Prosecutor has vehemently and fervently
opposed the submissions advanced by the appellant's counsel.
The original record which has been received in this Court has been
misplaced and thus, I have appreciated the submissions of the
appellant's counsel and learned Public Prosecutor on the basis of
the impugned judgment only.
(3 of 4) [SOSA-943/2018]
It is an admitted position that the recovery of contraband
poppy-straw weighing 99 Kilograms was made on 05.11.2011
from the hut/Bada in absentia of the accused. No document of
ownership of the premises was procured by the IO during
investigation so as to fortify the prosecution case regarding the
hut being that of the accused. The certificate (Ex.P/33) issued by
the Sarpanch Smt. Meena Kanwar (PW.12) on which reliance was
placed by the trial court for deciding the aspect of possession is
very vague inasmuch as it is only mentioned therein that the
appellant herein resides in the Village Badla Ka Kheda. It is further
noteworthy that when Muddamal and the samples were produced
in the trial court, the packaging thereof was totally torn and the
seizure officer could not identify the same to be of the case at
hand. In this background, the accused-appellant has available to
him strong and substantial grounds for assailing the impugned
judgment. Thus, the restrictions contained in Section 32-A read
with Section 37 of the NDPS Act do not apply.
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 Judge,
NDPS Cases, Bhilwara vide judgment dated 12.09.2018 in
Sessions Case No.10/2017 against the appellant-applicant Devilal
S/o Shri Laxman 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 25.08.2021 and
whenever ordered to do so till the disposal of the appeal on the
conditions indicated below:-
(4 of 4) [SOSA-943/2018]
1. That he will appear before the trial Court in the
month of January of every year till the appeal is
decided.
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 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 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.
The Registry shall make fervent efforts for tracing out the
original record. A report in this regard shall be submitted for
Court's perusal on the next date i.e., 25.08.2021.
List on 25.08.2021.
(SANDEEP MEHTA),J
142-Sudhir Asopa/-
Powered by TCPDF (www.tcpdf.org)
