Khiya Ram vs State Of Rajasthan
2022 Latest Caselaw 13935 Raj

Citation : 2022 Latest Caselaw 13935 Raj
Judgement Date : 28 November, 2022

Rajasthan High Court - Jodhpur

Khiya Ram vs State Of Rajasthan on 28 November, 2022

Bench: Farjand Ali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 809/2022

Khiya Ram S/o Shri Akharam, Aged About 30 Years, B/c Jat, R/o Khadkali, Police Station Pachodi, Dist. Nagaur (Raj.) (Presently Lodged At Dist. Jail, Nagaur)

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

----Respondent

For Petitioner(s) : Mr. Mangi Lal Bishnoi For Respondent(s) : Mr. Mahipal Bishnoi, PP

HON'BLE MR. JUSTICE FARJAND ALI Order

28/11/2022

Heard learned counsel for the appellants and learned

public prosecutor on application of suspension of sentence.

Learned counsel for the appellant submits that the

appellant has nothing to do with the alleged offence; neither

he was present at the crime scene nor he was having any

control or possession over the vehicle in question from which

the alleged contraband was recovered. Admittedly, the

vehicle was found lying in an abandoned condition near

roadside. A man named Sukhdev succumbed to the injuries

received by him in the accident met with the vehicle. No

person was found near the vehicle. The petitioner has sold

the vehicle to one Sukhdev way back on 28.05.2018 whilst

the incident occurred on 06.08.2018 and the agreement to

sell the vehicle has been produced in evidence and has been

marked as Exhibit D-3. The Notary Public who notarises the

agreement and the witness of the agreement were produced

(2 of 5) [SOSA-809/2022]

as DW-1 and DW-2 and the notary register Exhibit D-4 has

also been tendered into evidence. Yet, the learned trial Court

has not considered the same and has discarded it without

there being any legal and cogent ground. Learned counsel for

the appellant further submits that there are several flaws in

the course of investigation and the prosecution miserably

failed to prove the fact that the articles were sent to the FSL

from the Malkhana in an intact condition as the witness of

said fact constable Ajay Kumar, has not been produced in

evidence to state the aforesaid thing. He, thus, submits that

in absence of the linking evidence, it can not be held beyond

reasonable doubt that the packets were in the same condition

as it were when seized and till they reached to FSL. He

further submits that the Forensic Science report has not

been tendered into the evidence and not exhibited and in

absence of that, the said report can not be taken as an

incriminating material against the appellant. Since the

appellant was not having exclusive and conscious possession

of the vehicle from which the contraband was allegedly

recovered, no criminal liability can be fastened upon him. He

is behind the bars since more than four years and the appeal

may take further long time to be heard.

Learned Public Prosecutor vehemently opposes the

prayer made by learned counsel for the accused-appellant

and submits that the matter pertains to recovery of 2 quintals

51 kilogrames of Poppy Husk and the judgment of conviction

passed by learned Court below does not warrant any

interference.

(3 of 5) [SOSA-809/2022]

Heard learned counsel for the appellant as well as

learned Public Prosecutor and carefully scrutinized the

material. It is not in dispute that the vehicle was lying near

the roadside in an abandoned condition. The assertion made

on behalf of the appellant seems to be worth considerable

that he had sold the vehicle and handed over the possession

to one Sukhdev in the month of May, 2018 through an

agreement which has been tendered into evidence during the

trial. Moreover, the fact that the FSL report has not been

tendered into evidence in the trial is one situation persuading

this Court to entertain the bail plea. Further, the missing links

regarding taking of the sample from Malkhana to its reaching

to the FSL further strengthen the plea of the appellant for

bail. He is behind the bars since more than four years and the

hearing of appeal may take further more time, therefore,

considering the overall submissions and looking to the

totality of facts and circumstances of the case while refraining

from passing any comments on the niceties of the material

and the defects of the prosecution as the same may put an

adverse effect on hearing of the appeal, this court is of the

opinion that it is a fit case for suspending the sentence

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,

(4 of 5) [SOSA-809/2022]

NDPS Act (Addl. Sessions Judge No.1), Nagaur vide judgment

dated 10.09.2021 in Sessions Case No.51/2019 against the

appellant-applicant Khiya Ram S/o Shri Akharam 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 02.01.2023 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.