Rajasthan High Court - Jodhpur

Jeevan Lal vs State Of Rajasthan ... on 18 April, 2023

Bench: Farjand Ali

[2023/RJJD/010794]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1261/2022

S.B. Criminal Appeal No. 1175/2021

Jeevan Lal S/o Nana Lal Dhakar, Aged About 40 Years, R/o Jaisinghpura, P.s. Badisadari, Dist. Chittorgarh. (At Present Lodged In Dist. Jail, Chittorgarh).

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

----Respondent

For Petitioner(s) : Mr. Muktesh Maheshwari Mr. Aidan Choudhary For Respondent(s) : Mr. Gaurav Singh, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

18/04/2023

1. The instant application for suspension of sentence has been

moved in connection of the judgment impugned dated 18.11.2021

passed by Learned Special judge, NDPS Act cases No.2, Dist.

Chittorgarh in Sessions case No. 109/2014 whereby the accused

appellant has been convicted for the offences punishable under

sections 8/15 of NDPS Act and he has been sentenced with

maximum of ten years rigorous imprisonment along with fine of

Rs. 1,00,000/-.

2. Learned counsel for the accused-appellant submits that the

learned trial Judge has not appreciated the correct, legal and

factual aspects of the matter and thus, reached at an erroneous

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conclusion of guilt, therefore, the same is required to be

appreciated again by this court being the first appellate Court. The

other co-accused person namely Nanalal has already been released on

bail by the coordinate bench of this court vide order dated 02.02.2018

and the case of the appellant is on better footing than that of

Nanalal. It is the admitted case of the prosecution that neither the

petitioner was found present at the crime scene nor any

incriminating material or contraband was recovered from his

possession. There is not an iota of evidence to show or suggest

the complicity of the petitioner in commission of the crime. The

alleged recovery has not been made from his exclusive and

conscious possession. Hearing of the appeal is likely to take long

time, therefore, the application for suspension of sentence may be

granted.

3. Per contra, learned Public Prosecutor vehemently opposes

the prayer made by representative for the accused-appellant and

submits that the matter pertains to recovery of 744 kilograms of

poppy husk and the judgment of conviction passed by learned

Court below does not warrant any interference. As per the custody

certificate submitted by learned Public Prosecutor, the appellant

has suffered imprisonment for almost 5 years. The impediment

contained under Sections 32-A and 37 of NDPS, Act will be

attracted in the factual situation of the present case.

4. Heard and perused the material available on record as well

as gone through the statutory provisions applicable in the matter.

5. As per the story of the prosecution, certain quantity of poppy

husk was recovered from a tractor-trolley parked at bara ('an

open land for leashing animals'). Admittedly when the alleged

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recovery was made, no one was found present at the spot and the

contraband was lying in an abandoned condition. The appellant

was not present at the spot.

6. The appellant has been arraigned as an accused in this case

on the strength of statement of one constable mahendra who was

one of the member of seizing team. He stated that one person

who fled away from the spot was the present appellant. He has

been examined in trial as PW-18, when his creditability was tested

in cross examination, he made several evasive replies regarding

identification of the appellant for which this court refrains from

making any final observations at this stage as the same may

influence the hearing of this appeal, yet tentatively feel it apt to

take the same as a serious point of consideration regarding his

reliability.

7. In a recent ruling titled Mohd Muslim @ Hussain V. State

(NCT OF DELHI) in Special Leave Petition (CRL.) NO(S). 915 of

2023 order dated 28.03.2023, Hon'ble the Supreme Court has

discussed Section 37 of the NDPS Act in detail and has allowed the

accused in that matter to be released on bail while holding that

the impediment contained under Section 37 is not a bar to grant

of bail in cases where there is undue delay in conclusion of trial.

The paragraph of the afore-said judgment relevant to the present

matter is reproduced below:

"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the

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evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws

- be balanced against the public interest.

19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail

[2023/RJJD/010794] (5 of 7) [SOSA-1261/2022]

altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act."

8. This Court is aware of the provisions contained in Section 32-

A and Section 37 of the NDPS Act, however, after hearing the

submissions made by learned counsel for the accused-appellant

regarding that the co-accused has been granted bail thus, on the

ground of parity as well as considering the fact that the bara and

the tractor-trolley from where recovery of contraband was effected

were not owned/possessed by the accused-appellant, particularly

considering the other fact that he is behind the bars for around 5

years in total and the hearing of appeal may likely to take further

more time, thus considering the prolonged custody period of the

appellant, in light of the judgment passed by Hon'ble the Supreme

Court in Manohar Lal Ainani Vs. State of Rajasthan & Anr.

(Special Leave to Appeal (Crl.) No(s) 2893/21 decided on

15.11.2021) and having regard 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

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the appeal, this court is of the opinion that it is a fit case for

suspending the sentence awarded to the accused appellant.

9. 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 cases No.2,

Dist. Chittorgarh in Sessions case No. 109/2014 vide judgment

dated 18.11.2021 against the appellant-applicant- Jeevan Lal

S/o Nana Lal Dhakar 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/- to the satisfaction of the learned trial

Judge for his appearance in this court on 24.05.2023 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 their changed

address to the trial Court as well as to the counsel

in the High Court.