Rajasthan High Court - Jodhpur
Mukesh Kumar vs State Of Rajasthan on 4 April, 2023
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Application for Suspension Of Sentence
No. 255/2023
In
S.B. Criminal Appeal No. 348/2023
Mukesh Kumar S/o Shiv Kumar Joshi, Aged About 38 Years, R/o
Pathiknagar Ps Subhash Nagar Bhilwara Dist. Bhilwara (At
Presently Appellant Is Lodged In Dist. Jail Chittorgarh)
----Appellant
Versus
State Of Rajasthan, Through Pp
----Respondent
For Appellant(s) : Mr. Manish Kumar Pitaliya
For Respondent(s) : Mr. A.R. Choudhary, P.P.
HON'BLE MR. JUSTICE FARJAND ALI
Order
04/04/2023
The instant application for suspension of sentence has been
moved on behalf of the applicant in the matter of judgment dated
23.01.2023 passed by the learned Special Judge, NDPS Cases
No.2, Chittorgarh in Sessions Case No.35/2019 (88/2018)
whereby he was convicted and sentenced to suffer rigorous
imprisonment of 12 years along with a fine of Rs.2,00,000/- under
Section 8/20(A)(II)(C) of the NDPS Act, 1985.
It is contended on behalf of the applicant that the learned
trial Judge has not appreciated the correct, legal and factual
aspects of the matter and thus, reached at an erroneous
conclusion of guilt, therefore, the same is required to be
appreciated again by this court being the first appellate Court.
Hearing of the appeal is likely to take long time, therefore, the
application for suspension of sentence may be granted.
(2 of 3)
Per contra, learned public prosecutor has vehemently
opposed the prayer made on behalf of the accused-applicant for
releasing the appellant on application for suspension of sentence.
Heard learned counsel for the parties and perused the
material available on record.
A perusal of the judgment clearly reflects that the recovered
contraband includes stem, stalks and leaves. There is no
mentioning of having flowering and fruiting tops, thus, the ground
raised by learned counsel for the appellant required to be
appreciated again by this Court being the first appellate Court.
The submission made by learned counsel for the appellant
seems to be worth considering that the allegedly recovered
contraband does not come within the purview of the term "Ganja"
as defined under Section 2 of the NDPS Act. He submits that only
the flowering and fruiting tops of 'Cannabis' plant can be
considered to the contraband Ganja. However, the leaves comes
within the definition of Bhang as defined under the Rajasthan
Excise act, thus, the seeds, stems and other part of the plant
would not covered under the term "Ganja" as defined under NDPS
Act.
Considering the submissions of learned counsel for the
parties and looking to the totality of facts and circumstances of
the case, more particularly the fact that the applicant is behind
the bars from 25.04.2018 and hearing of the appeal would likely
to take time as well as considering the overall submissions while
refraining from passing any comments on the niceties of the
(3 of 3)
matter 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
sentence passed by learned Special Judge, NDPS Cases No.2,
Chittorgarh who passed the impugned order 23.01.2023 in
Sessions Case No. 35/2019 (88/2018) against the appellant-
applicant- Mukesh Kumar S/o Shiv Kumar Joshi 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 sureties of Rs.25,000/- each to the
satisfaction of the learned trial Judge for his appearance in this
court on 05.05.2023 and whenever ordered to do so till the
disposal of the appeal on the conditions indicated below:-
1. That he will appear before the trial Court in the month
of January of 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 addresses, they
will give in writing their changed address to the trial
Court.
(FARJAND ALI),J
13-divya/-
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