Shivraj @ Swaraj vs State Of Rajasthan ...
2023 Latest Caselaw 2673 Raj

[2023/RJJD/008494]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 280/2022

In

S.B. Criminal Appeal No. 371/2022

Shivraj @ Swaraj S/o Het Ram Bishnoi, Aged About 32 Years, R/ o Kudusu P.s. Panchu At Present Ward No. 26, Joravarpura Nokha P.s. Nokha, District Bikaner. (Presently Lodged In District Jail, Chittorgarh)

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

----Respondent

For Petitioner(s) : Mr. Vinod Kumar Sharma For Respondent(s) : Mr. Javed Gauri, 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

11.03.2022 passed by the learned Special Judge, NDPS Act Case

No.2, Chittorgarh in Sessions Case No.78/2014 (23/2011)

whereby he was convicted and sentenced to suffer maximum

imprisonment of ten years' rigorous imprisonment along with a

fine of Rs.1,00,000/- under Section 8/25 of NDPS Act.

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

[2023/RJJD/008494] (2 of 4) [SOSA-280/2022]

appreciated again by this court being the first appellate Court.

Learned counsel for the appellant submits that there is no

evidence even for the namesake for establishing the fact that the

appellant was having knowledge regarding alleged transport of

contraband in contravention of the provision contained in NDPS

Act. Even he is not the registered owner of the vehicle. He is

booked and tried in this matter only on being son of the registered

owner. However, the registered owner failed to establish the fact

that at the relevant point of time, the vehicle was being plied

under the instruction of the appellant. He is behind the bars since

last three years and nine months and there is not likelihood of

hearing of the appeal within a short span. He was on bail during

trial and did not misuse the liberty so granted to him. Admittedly,

the appellant was not present at the time of recovery, hearing of

the appeal is likely to take long time, therefore, the application for

suspension of sentence may be granted.

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.

Considering the submissions of learned counsel for the

parties and looking to the totality of facts and circumstances of

the case, more particularly the facts that the accused-appellant

was on bail during the course of trial and the hearing of appeal is

likely to take further more time and considering the overall

submissions while refraining from passing any comments on the

[2023/RJJD/008494] (3 of 4) [SOSA-280/2022]

niceties of the 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 Act Case No.2,

Chittorgarh who passed the impugned order dated 11.03.2022 in

Sessions Case No. 78/2014 (23/2011) against the appellant-

applicant- Shivraj @ Swaraj S/o Het Ram Bishnoi 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.

The learned trial Court shall keep the record of attendance of

the accused-applicant in a separate file. Such file be registered as

Criminal Misc. Case related to original case in which the accused-

[2023/RJJD/008494] (4 of 4) [SOSA-280/2022]

applicant was 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 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 106-divya/-

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