Rajendra vs State Of Rajasthan
2022 Latest Caselaw 14673 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 444/2021

IN

Criminal Appeal No.716/2020

Rajendra S/o Shri Lakshminarayan, Aged About 36 Years, R/o Gardori, Police Station Rathanjana, Pratapgarh. (At Present Lodged In District Jail Banswara).

                                                                  ----Petitioner
                                   Versus
State Of Rajasthan, Through Pp
                                                                ----Respondent


For Petitioner(s)        :     Mr. Ramesh Purohit
For Respondent(s)        :     Mr. Javed Gauri, PP



             HON'BLE MR. JUSTICE FARJAND ALI

                                    Order

14/12/2022

Heard learned counsel for the appellant and learned public

prosecutor on application seeking suspension of sentence.

Learned counsel for the applicant-appellant submits that the

prosecution has failed to prove the case beyond every shadow of

reasonable doubt as it has not been proved that the information

under Section 42 (2) of NDPS Act was properly supplied to the

higher officers; though the constable Ramawatar has been

produced to say that he intimated the officer but none of the

superior officers produced any evidence to corroborate the facts

that the information under Section 42 of NDPS Act was received

by them; no other document has been produced to show the

compliance of Section 42 of NDPS Act which is mandatory in

(2 of 4) [SOSA-444/2021]

nature. Learned counsel for the appellant further submits that the

NDPS Act is called a draconian law because of its stringent

provision of punishment and that is why the mandatory provisions

are required to be complied with stricto sensu, failure of which

vitiates the recovery. He drew attention of this Court towards the

statements of the Investigating Officer BhagwanLal PW-16, who

admitted in cross-examination that while conducting the

investigation, he did not record the statements of higher officers

regarding the information under Section 42 of NDPS Act and no

record was collected by him from their office and nothing was

found on the record; the incident is said to have taken place on

04.02.2018 i.e. in the month of February when it becomes pitch

dark at 7:50 p.m. and thus, the entire proceedings of seizure were

made after sunset and before rising of the sun and therefore, as

per the mandate of law, different procedure was required to be

adopted. BhagwanLal PW-16 further admits that in cross-

examination that there is no endorsement in the file to the effect

that since the search warrant could not be obtained, therefore, he

proceeded to effect search and seizure in nigh hours; it is

admitted position that copies of Rojnamcha were not transmitted

to the superior officers which were required to be done as per the

statutory mandate. The appellant has been languishing in jail

since 04.02.2018 and he has served the sentence for

approximately 4 years 10 months and 12 days. Therefore, learned

counsel for the appellant submits that the sentence awarded to

the accused-appellant may be suspended as the hearing of the

appeal may take long time to conclude.

                                          (3 of 4)                  [SOSA-444/2021]



     Per   contra,   learned       Public      Prosecutor        has   vehemently

opposed the prayer made by the learned counsel for the accused-

appellant for suspending the sentences.

This Court is cognizant of the provisions contained in Section

32-A and Section 37 of the NDPS Act but considering the

submissions made by learned counsel for the accused-appellant

regarding non-compliance of statutory procedure and keeping in

mind the fact of subjection of accused to long period of

incarceration pending appeal, this court deems it fit to grant the

bail to the applicant.

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 Act Cases,

Pratapgarh vide judgment dated 29.07.2020 in Special Sessions

Case No.14/2018 against the applicant/appellant Rajendra S/o

Shri Lakshminarayan 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.1,00,000/- with two

sureties of Rs.50,000/- each to the satisfaction of the learned

trial Judge for his appearance in this Court on 16.01.2023 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.

(4 of 4) [SOSA-444/2021]

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(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.

(FARJAND ALI),J 207-Anshul/-

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