Rajasthan High Court - Jodhpur
Durgesh Prajapat vs State Of Rajasthan on 1 October, 2021
Bench: Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
S.B. Criminal Appeal No. 898/2021.
Durgesh Prajapat S/o Bhawani Shankar, by caste Prajapat, aged
46 years, resident of Nandrai Police Station Bigod, District
Bhilwara.
(At Present Lodged In District Jail, Bhilwara).
----Appellant
Versus
State Of Rajasthan through PP
----Respondent
For Appellant(s) : Mr. Rakesh Matoria.
For Respondent(s) : Mr. Arun Kumar, PP.
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
Order
01/10/2021
Heard learned counsel for the appellant as well as learned
Public Prosecutor.
Admit. Issue notice. Send for the record.
Learned Public Prosecutor accepts notices on behalf of the
respondent - State of Rajasthan, therefore, notices need not be
issued.
Record requisition may be given 'Dasti' to the learned
counsel for the appellant.
Heard learned counsel for the appellant on the application
seeking suspension of sentences (SoS Application No. 610/2021).
(2 of 4) [CRLAS-898/2021]
Learned counsel for the applicant-appellant stated that only
5 gram of Smack has been recovered from the accused-appellant
which is below commercial quantity. Learned counsel also stated
that as per para number 8 of the order passed by the co-ordinate
Bench of this Court in the case of Rajkumar S/o Heera Lal Vs.
State of Rajasthan (S.B. Criminal Misc. Bail Application No.
13423/2019, decided on 03.10.2019, if the recovered contraband
is of small quantity, the offence is clearly bailable. Learned counsel
stated that the applicant-appellant has wrongly been implicated in
this case; that the applicant-appellant was on bail during the trial;
and that the trial will take time. With all these submissions,
learned counsel for the applicant-appellant prays that the benefit
of suspension of sentences may be granted to the applicant-
appellant and he may be ordered to be released on bail.
Per contra, learned Public Prosecutor stated that as per
evidence of the prosecution, it is proved beyond doubt that 5
gram of Smack has been recovered from the accused-applicant;
that the accused-applicant has been made accused for the offence
punishable under Section 8/21 of the NDPS Act but the learned
Public Prosecutor does not controvert these facts that the
recovered contraband is of a small quantity and the applicant-
appellant was on bail during trial.
For ready reference, the relevant portion of the order dated
03.10.2019 (supra) is quoted herein as under:-
"8. ........... ............ ............ Now the offence of
possession of a small quantity (upto 1 kg) of
Ganja, under Section 21 of the NDPS Act, if
proved, can lead to a sentence upto six months,
and fine. By virtue of Section 37(1) of the NDPS
(3 of 4) [CRLAS-898/2021]
Act, the offence has become cognizable, however,
as per Item No. 3 in the list (In Part II of the First
Schedule) offence is clearly bailale."
Upon a consideration of the arguments advanced on behalf
of the petitioner and having regard to the facts and circumstances
of the case, this Court is of the opinion that it is a fit case for
suspending the sentences awarded to the accused-
appellant.
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 the learned Special Judge, NDPS Cases,
Bhilwara (Rajasthan), vide judgment dated 21.09.2021 in
Sessions Case No. 28/2017 against the appellant-applicant,
Durgesh Prajapat S/o Bhawani Shanker, 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 sound and solvent sureties of Rs.25,000/- each
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 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.
3. Similarly, if the sureties change their address(s),
they will give in writing their changed address to
the trial Court.
(4 of 4) [CRLAS-898/2021]
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.
(DEVENDRA KACHHAWAHA),J
6-Mohan/-
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