Bhagwan Lal Dhakad vs State Of Rajasthan
2021 Latest Caselaw 15246 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 921/2019

in

S.B. Criminal Appeal No.366/2018

Bhagwan Lal Dhakad S/o Shri Narayanlal Dhakad, Aged About 41 Years, Manganj, Police Station Bigod, Mandalgarh, District Bhilwara (Rajasthan),. (Presently Lodged In District Jail, Chittorgarh).

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

                                                                       ----Respondent


For Petitioner(s)          :     Mr. Mahesh Thanvi
For Respondent(s)          :     Mr. Gaurav Singh, PP

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Order

01/10/2021

Heard learned counsel for the appellant-applicant as well as

learned Public Prosecutor, on application for suspension of

sentences.

By the instant application preferred under Section 389

Cr.P.C., applicant-appellant has craved for suspending the

sentences handed down by learned Special Judge, NDPS Cases

No.1, Chittorgarh (for short, 'learned trial Court'), by its verdict

dated 31.01.2018 in Sessions Case No.42/2014. Learned trial

Court, by the aforesaid verdict, convicted the applicant-appellant

for offences under Section 8/18(b) of the NDPS Act.

Arguing on the application for suspension of sentences, it is

(2 of 4) [SOSA-921/2019]

submitted by learned counsel that in the present matter the

accused appellant was wrongly convicted by the trial Court

because third option was given by the Seizure Officer as notice for

compliance of Section 50 of the NDPS Act, exhibit P/2, and body

search was also conducted as per exhibit P/3 and as decided by

this Court in the matter of Kamaal Vs. State of Rajasthan reported

in 2018(3)R.Cr.D.90(Raj.), in the matter of Satynarayan @ Sattu

Vs. State of Rajasthan reported in 2018(3)R.Cr.D.521(Raj.) and

the Hon'ble Supreme Court in the matter of Dilip and Anr. Vs.

State of M.P. reported in (2007) 1 Supreme Court Cases 450, the

third option was given by the Seizure Officer as a notice under

Section 50 of the NDPS Act against the spirit of Section 50 of the

NDPS Act. Learned counsel further submits the accused appellant

is benind the bars since 4 years and 6 months and hearing of the

appeal may take long time, therefore, the application for

Suspension of Sentence may kindly be allowed.

Per contra learned Public Prosecutor has fervently and

vehemently opposed the application for suspension of sentences

and stated that since the contraband was recovered from the

vehicle and not from the physical possesson of the accused

appellant, therefore, compliance of Section 50 of the Act is not

required into present case.

Having regard the facts and circumstances of the case and

the case law referred by the learned counsel for the appellant and

looking to the fact that third option was given by the Seizure

Officer in notice of Section 50 of NDPS Act and Rs.1012/-

alongwith driving licence were recovered in the body search of the

(3 of 4) [SOSA-921/2019]

accused appellant, therefore, a notice exhibit P/2 given in the

spirit of Section 50 of the Act is not proper, because if body of the

accused appellant was searched compliance of Section 50 of NDPS

Act is mendatory. It does not affect that alleged contraband was

not recovered from the body search of the accused appellant. If

physical body was searched, compliance of Section 50 of the Act is

mandatory, In the above circumstances, I feel inclinded to granted

this application for Suspension of Sentence.

Accordingly, the application for suspension of sentence filed

under Section 389 Cr.P.C. is allowed and it is ordered that the

sentences passed by learned Special Judge, NDPS Cases No.1,

Chittorgarh, vide judgment dated 31.01.2018, in Sessions Case

No.42/2014 against appellant-applicant Bhagwan Lal Dhakad S/o

Shri Narayanlal Dhakad 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.2,00,000/- with two

sound and solvent sureties of Rs.1,00,000/-each (one surety

should be of a close or blood relative of the accused appellant) to

the satisfaction of the learned trial Judge for his appearance in this

Court on 08.11.2021 and whenever ordered to do so till disposal

of the appeal, on the conditions indicated below:-

1. That he will appear before the trial Court in the month of January 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.

(4 of 4) [SOSA-921/2019]

The learned trial Court shall keep the record of attendance of

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 purposes 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.

(DEVENDRA KACHHAWAHA),J 270-NS/Hanuman/-

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