Rajasthan High Court - Jodhpur

Bhagwan Lal vs State on 1 October, 2021

Bench: Sandeep Mehta

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR


    S.B. Criminal Misc. Second Bail (Suspension of Sentence)
                      Application No.238/2021

                                       in

               S.B. Criminal Appeal No. 656/2018

Bhagwan Lal S/o Ratan Lal Jat, Resident Of Kuthana, P.s.
Bhadsoda, District Chittorgarh. At Present Lodged In District Jail,
Chittorgarh
                                                                  ----Appellant
                                   Versus
The State Of Rajasthan
                                                                ----Respondent



For Appellant(s)         :     Mr. R.K. Charan
For Respondent(s)        :     Mr. Vikram Sharma, P.P.



          HON'BLE MR. JUSTICE SANDEEP MEHTA

                                    Order

Date of pronouncement : 01/10/2021


Judgment reserved on : 24/09/2021


BY THE COURT :

The instant application for suspension of sentence

under Section 389 CrPC has been preferred on behalf of the

appellant-applicant Bhagwan Lal s/o Ratan Lal Jat, who has been

convicted and sentenced as under vide the judgment dated

30.05.2018 passed by the learned Special Judge, NDPS Act Cases

No.2, Chittorgarh in Sessions Case No.130/2014 :-

                                          (2 of 7)                      [SOSA-238/2021]




Offence      for Sentence awarded
which convicted
Section 8/15       of Rigorous imprisonment of 12 years alongwith
the NDPS Act          a fine of Rs.2,00,000/- and in default of
                      payment of fine, to undergo additional
                      rigorous imprisonment of one year



            We    have    heard      and      considered         the    submissions

advanced by the learned counsel for the appellant-applicant and

the learned Public Prosecutor and have gone through the

impugned judgment and the record.

The first application for suspension of sentence

preferred on behalf of the appellant was dismissed by this court

vide order dated 09.12.2019 observing that after being released

on bail in the present case during trial, the appellant was found

indulged in another case for the offence punishable under the

NDPS Act.

A period of more than one year and eight months has

passed by since the said rejection, whereafter Mr. R.K. Charan,

learned counsel representing the appellant, has moved this second

application for suspension of sentence on numerous grounds, one

of that being that in the other case arises out of FIR No.130/2008

registered at the Police Station Badi Sadri for the offences under

Sections 8/18 and 25 of the NDPS Act, the appellant has been

acquitted after trial vide judgment dated 29.01.2019. A certified

copy of the said judgment has been placed on record by Mr.

Charan. The said case involved recovery of 26 kg poppy straw

from the co-accused Ratan Lal, who was convicted for the offences

under Sections 8/15 and 25 of the NDPS Act, whereas the

appellant was acquitted of the charges. Mr. Charan has placed on

(3 of 7) [SOSA-238/2021]

record a copy of another charge-sheet filed against the appellant

after investigation of FIR No.64/2015 registered at the Police

Station Pallu, wherein the appellant has been implicated for the

offence punishable under Section 8/18 read with Section 29 of the

NDPS Act on the basis of the interrogation note of the main

accused persons, namely, Rampratap @ Pappu, Hanuman and

Ramniwas, who were found transporting poppy straw weighing 1

kg in a car on 24.05.2015. It is stated that during the course of

investigation, these accused persons made a confession to the

Investigating Officer that they had procured the contraband from

the appellant herein. Other than the confessional statement of

the co-accused, there is nothing on the record of the said case to

connect the appellant with the crime.

In the case at hand, the appellant was apprehended on

12.10.2008 with the allegation that the SHO, Police Station

Bhadsoda received an information that the appellant had been

indulging in illegal trade of poppy straw and that he had concealed

the contraband in his field. The police team reached a field on the

Ummedpura Road at 04.45 p.m. It is alleged that on seeing the

police team, the appellant escaped towards Ummedpura on a

motorcycle and could not be apprehended. The police team found

five gunny bags abandoned at the spot, from which 111 kg.

contraband, suspected to be poppy straw, was recovered. The

Investigating Officer proceeded to mix the contents of all the five

bags and prepared two samples, one of which was forwarded to

the FSL for examination.

Mr. Charan contends that the place, from where the

recovery was effected, was a field, which was neither in

possession nor in control of the appellant. In this regard, he drew

(4 of 7) [SOSA-238/2021]

the court's attention to the statement of the Seizure Officer SHO

Ravindra Singh (P.W.8), more particularly, his cross-examination,

wherein he admitted that he did not seek any verification from the

Patwari etc. regarding the ownership of the field or the person in

possession thereof. He contends that the appellant is not

connected with the filed in question in any manner. He has been

roped into the case simply on the basis of suspicion. He drew the

court's attention to the statement of Radheyshyam (P.W.9), the

Patwari concerned, who admitted in his cross-examination that the

field in relation whereto the Investigating Officer sought

verification was neither in the possession nor under the ownership

of the appellant herein. He further submits that the sampling

procedure undertaken by the Investigating Officer is flawed. Mr.

Charan, thus, urges that the conviction of the appellant as

recorded by the trial court is absolutely unjustified. The appellant

has remained in custody for a period in excess of four years.

Hearing of the appeal is unlikely in the near future. He, thus,

urged that the appellant deserves indulgence of bail during the

pendency of the appeal.

Learned Public Prosecutor vehemently and fervently

opposed the submissions advanced by the appellant's counsel.

However, he too does not dispute the fact that the appellant

herein was not apprehended at the spot. The contraband poppy

straw was found lying in a field in the Village Ummedpura. The

Seizure Officer Ravindra Singh (P.W.8) admitted that he did not

seek any verification regarding the ownership of the field in

question. The Investigation was undertaken by Mr. Anil Kumar

Joshi (P.W.18), who admitted in his cross-examination that the

owner of the field in question was Kalu Lal Kharol and that

(5 of 7) [SOSA-238/2021]

statement of Kalu Lal Kharol, who was not examined during

investigation. After going through the statement of the Seizure

Officer Ravindra Singh (P.W.8) and the Investigating Officer Anil

Kumar Joshi (P.W.18), it becomes clear that they did not collect

any evidence to show connection of the appellant with the field,

from where the seizure was effected. The field was owned by Kalu

Lal Kharol, who was not examined during investigation or at the

trial. It is mentioned in the seizure memo as well as the site plan

that the appellant was the owner of the field in question, where

the poppy straw was stored and that he escaped on seeing the

police party. However, as the field in question was admittedly of

Kalu Lal Kharol, it was imperative for the prosecution to have

examined Kalu Lal Kharol so as to establish the possession of the

appellant thereupon. In the seizure memo (Ex.P/8), the place of

seizure has been shown to be a public road. However, in the site

inspection plan, the place of seizure has been shown to be from

inside the agricultural field of Kalu Lal Kharol.

In this background, I am of the opinion that the

appellant has available, strong and plausible grounds for assailing

the impugned judgment. He has remained behind bars for more

than four years. One more criminal case registered against the

appellant at the Police Station Badi Sadri has resulted into his

acquittal. In the case registered at Hanumangarh, the appellant

has been implicated on the basis of the interrogation note of the

co-accused recorded by the police officers. Hearing of the appeal

is unlikely in the near future. Conditions of Section 32-A read with

Section 37 of the NDPS Act are satisfied.

Hence, this court is of the opinion that this is a fit case

for release of the appellant-applicant on bail by suspending the

(6 of 7) [SOSA-238/2021]

sentences awarded to him by the trial court during the pendency

of the appeal.

Accordingly, the 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 Act

Cases No.2, Chittorgarh vide judgment dated 30.05.2018 in

Sessions Case No.130/2014 against the appellant-applicant

Bhagwan Lal S/o Ratan Lal Jat 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 28.10.2021

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.