Kailash Chandra Jat vs State Of Rajasthan
2022 Latest Caselaw 14729 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 857/2021

In

S.B. Criminal Appeal No.209/2021

Kailash Chandra Jat S/o Shri Khetaram Jat, Aged About 47 Years, R/o Khotawas, Arniyali, P.s. Dhorimanna, District Barmer, Rajasthan. (Presently Lodged In Central Jail, Jodhpur)

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

----Respondent

For Petitioner(s) : Mr. B.S. Rathore For Respondent(s) : Mr. Javed Gauri, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

15/12/2022

Heard learned counsel for the appellant and learned public

prosecutor on application seeking suspension of sentence.

Learned counsel for the accused-appellant submits that the

prosecution has miserably failed to prove its case beyond

reasonable doubt, yet, the learned trial Court has reached on an

erroneous conclusion of guilt, as such, the Court below has failed

to appreciate correct legal and factual aspects of the matter. He

strenuously urged that the NDPS Act is called a draconian law

because of the stringent provision of punishment and that is why

(2 of 4) [SOSA-857/2021]

mandatory provisions are required to be complied with stricto

sensu otherwise the recovery vitiates on this count alone. In this

case, the prosecution has failed to comply with the provision of

Section 50 of the NDPS Act. There is a major discrepancy in the

inventory made by PW-15 Rajendra Singh Charan and the memo

of recovery. There is a major contradiction in the sample 'A' and

'A-1', when it is compared with the memo of recovery prepared by

the Suresh Saran, SHO. No independent witnesses were kept

present at the time of making recovery rather police personnels

were made the witness of recovery. He further submits that there

are several flaws in the prosecution case on the basis of which the

judgment of conviction is not sustainable. He placed reliance on

the Petition(s) for Special Leave to Appeal (Crl.) No(s) 2893/21

titled Manohar Lal Ainani Vs. State of Rajasthan & Anr.,

wherein it was held vide order dated 15.11.2021 that looking to

the prolonged custody period of the petitioner, bail shall be

granted to him in this matter. In another landmark judgment of

Satender Kumar Antil vs. Central Bureau of Investigation

and Ors. reported in AIR 2022 SC 3386, the aforesaid aspect

has been reiterated. The appeal has already been admitted for its

re-appreciation of the evidence and till date the appellant has

served almost 5 years and 8 months imprisonment therefore,

learned counsel for the appellant submit that the sentence

awarded to the accused-appellant may be suspended as the

hearing of the appeal may take long time to conclude. If the

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appeal is not taken up the very purpose of filing the appeal would

be frustrated by keeping the appellant incarceration.

Per contra, learned Public Prosecutor has vehemently

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

appellant for suspending the sentences but he too does not

dispute the fact that appellant is behind the Bar for almost 5 years

and 8 months.

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 Sessions Judge, Barmer vide

judgment dated 29.01.2021 in Sessions Case No.30/2017 (CIS

No.248/217) against the applicant/appellant Kailash Chandra

Jat S/o Shri Khetaram 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.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:-

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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.

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 231-Mamta/-

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