Deepak Kumar vs State Of Rajasthan
2021 Latest Caselaw 10312 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1129/2019

Deepak Kumar S/o Gopal Ram, Aged About 26 Years, B/c Arora , R/o Ward No 6, Metro City , Shyam Nagar , Purani Abadi , Sriganganagar (Raj.) (Real Address House No 1/284, Ward No 6, Housing Board Colony , Purani Abadi , Sri Ganganagar ) (At Present Undergoing Sentence In Central Jail , Sri Ganganagar Since 4-4-2019 Having Suffered Pervious Custody From 14-4- 2016 To 23-12-2016 Total 254 Days)

----Petitioner Versus State Of Rajasthan, Through PP

----Respondent

For Petitioner(s) : Mr. M.M. Dhera 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

04.04.2019 passed by learned Special Judge, NDPS Cases,

Sriganganagar in Sessions Case No.39/2016 and has been

sentenced to rigorous punishment of fifteen years and fine. 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 custody

certificate of the appellant as per which, he has been in custody

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for the last three years. He does not have any criminal

antecedents. The case at hand involves recovery of 71 Kilograms

500 grams contraband styled to be poppy husk mixture. As per

the seizure memo (Ex.P/10) and the statement of the Seizure

Officer, Shri Avdesh Sandu (PW.14), the contraband poppy husk

mixture was packed in 767 small plastic pouches. The seizure

officer mixed the entire quantity after opening the pouches and

then drew two samples therefrom. Learned counsel Shri Dhera

drew the Court's attention to this Court's judgment in the case of

Netram vs State of Rajasthan reported in 2014 1 CrLR 163

and the Standing Instruction No.1/88 and urged that the

sampling procedure is totally tainted and at best it can be

accepted that two packets containing 250 grams each of poppy

straw the samples drawn by the Seizure Officer) were recovered

from the appellant. He further submits that there is a grave

discrepancy regarding the ownership of the house in question

from where recovery was made which has wrongly been attributed

to the appellant. He further submits that the appellant has

available to him several significant grounds so as to challenge the

impugned judgment. Hearing of the appeal is likely to consume

time. On these submissions, Shri Dhera urged that the appellant

deserves indulgence of bail during pendency of the appeal.

Learned Public Prosecutor has vehemently and fervently

opposed the submissions of the appellant's counsel. However, he

too is not in a position to dispute the fact that the Seizure Officer

mixed contents of the 100 odd packets containing the suspected

contraband and drew two samples of 250 grams each therefrom.

As per the Instruction 1.7 issued by the NCB, New Delh, where the

package/containers seized together are of identical size, then they

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have to be bunched in lots of 10 packages/containers and in case

of seizure of Ganja and Hashish, they have to be bunched in lots

of 40 and from such lots, separate samples can be drawn. In the

present case, the contents of all the packets were mixed and only

two samples of 250 grams were drawn.

In this background and considering the over all facts and

circumstances of the case, this court is of the opinion that

conditions of Section 32A and 37 of the NDPS Act are satisfied and

hence, it is a fit case to enlarge the appellant-applicant on bail by

suspending his sentences during the pendency of the appeal.

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, Sriganganagar vide judgment dated 04.04.2019 in

Sessions Case No.39/2016 against the appellant-applicant Deepak

Kumar S/o Shri Gopalram 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 07.08.2021 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.

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.

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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.

(SANDEEP MEHTA),J 144-Sudhir Asopa/-

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