Rajasthan High Court - Jodhpur

Ram Kumar @ Rakesh Kumar vs State Of Rajasthan ... on 20 April, 2023

Bench: Farjand Ali

[2023/RJJD/011535]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1226/2022

S.B. Criminal Appeal No. 613/2021

Kashmir Singh S/o S. Mukhtiar Singh, Aged About 56 Years, B/c Majbisikh, R/o H.no. 92, Bhati Colony, Killawali Ps Lambi Dist. Mukatsar (Punjab). (At Present Lodged In Central Jail, Sri Ganganagar).

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

----Respondent Connected With S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 359/2022 IN

S.B. Criminal Appeal No. 773/2021

Ram Kumar @ Rakesh Kumar S/o Sh. Mohan Lal, Aged About 23 Years, B/c Kumhar, R/o Deshu Jodha Ps Sadar Dabwali Dist. Sirsa (Haryana). (At Present Lodged In Central Jail, Sri Ganganagar).

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


For Petitioner(s)            :     Mr. R.S.Gill
                                   Mr. D.S.Gharsana
For Respondent(s)            :     Mr. A.R.Choudhary, PP



               HON'BLE MR. JUSTICE FARJAND ALI


                                        Order



 [2023/RJJD/011535]                    (2 of 7)                     [SOSA-1226/2022]


20/04/2023

1. The instant applications for suspension of sentence have

been moved in connection of the judgment impugned dated

12.07.2021 passed by Learned Additional Sessions Judge, NDPS

Cases, Sangaria, Dist. Hanumangarh in Sessions case No.

11/2018 whereby the accused appellant-Kashmir Singh has been

convicted and sentenced to suffer maximum imprisonment of 10

years under Sections 8/21, 22, 25 and 29 of NDPS Act and lesser

punishment for the offences under Section 18(c)/27(b)(2) of

Drugs and Cosmetic Act and the accused appellant-Ram Kumar @

Rakesh Kumar has been convicted and sentenced to suffer

maximum imprisonment of 10 years under Sections 8/21, 22 and

29 of NDPS Act and lesser punishment for the offences under

Section 18(c)/27(b)(2) of Drugs and Cosmetic Act.

2. Briefly stated, the facts of the instant case are that a bike

bearing registration No. HR 25 B 8633 was intercepted by the

police at the time of 'nakabandi' on bhagatpura road on

26.01.2018 at about 03:20 P.M. Upon suspicion, the police

officers searched their bag which was kept in between them and

during search, total 35 bottles of ONEREX cough syrup and 300

tablets of CARISOMA were found in the bag which was seized by

the police and the seizing officer took only two bottles of ONEREX

cough syrup out of the 35 bottles for sampling marked A

(chemical sample) and B (control sample) which were sent to FSL.

Similarly, out of the 30 strips containing 10 tablets each of

CARISOMA tablets, two strips were sent for testing as chemical

sample and control sample.

[2023/RJJD/011535] (3 of 7) [SOSA-1226/2022]

3. Learned counsel for the appellants vehemently submits

that the mandatory provisions of NDPS Act have not been

complied with, thus, on this count, the recovery of the contraband

is vitiated. The samples of contraband were not collected

individually from all the 35 bottles of ONEREX cough syrup and 30

strips of CARISOMA tablets for investigation as per the stipulations

in the Standing Instruction No.1/89 dated 13.06.1989 issued by

Government of India. He further submits that in the present set

of facts, the detailed judgment titled Ramchandra v. State of

Rajasthan passed by this court in S.B. Criminal Misc. 3rd Bail

Application No.1162/2022, wherein the rules pertaining to sample

collection contained in Standing Order No. 1/1989 dated

13.06.1989 issued by Government of India under Section 52A of

NDPS Act have been enumerated inter alia other aspects, will be

applicable. As samples from all of the contraband were not drawn

for testing, it cannot be said with utmost certainty that each of the

packets contained contraband in it.

4. He further submits that the appellants has spent last 5 years

and 3 months in custody, if they is not released on bail the very

purpose of filing the appeal would be frustrated. He places reliance

on the judgment passed by Hon'ble the Supreme Court in

Satender Kumar Antil Vs. Central Bureau of Investigation

reported in (2021) 10 SCC 773 to support his argument that

looking to the long period of incarceration, the sentence of the

applicant deserves to be suspended. As the hearing of the appeal

will take long time to conclude, therefore, learned counsel for the

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appellants submits that the sentence awarded to the accused-

appellants may be suspended.

5. Per contra, learned Public Prosecutor vehemently opposes

the prayer made by learned counsel for the accused-appellants

and submits that the matter pertains to recovery 35 bottles of

ONEREX cough syrup and 30 strips of CARISOMA tablets 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 petitioner has suffered

imprisonment for almost 5 years and 3 months.

6. Heard. Perused the material available on record.

7. After careful scanning of the record and consideration of the

submissions, it is observed that it cannot be presumed without

solid evidence that all the bottles and strips were containing

contraband. Since the doctrine of beyond reasonable doubt is

applicable in criminal matters, therefore, even the initial duty lies

upon the prosecution to show that the accused-appellants were

having contraband in all the bottles and strips. It is emanating

from a perusal of the seizure memo that no procedure as

stipulated under the statutory instructions has been followed. The

representative samples from the alleged contraband were not

collected in the correct manner as per the stipulations in the

Standing Instruction No. 1/1989 dated 13.06.1989 issued by

Government of India under Section 52A of NDPS Act. Therefore,

the judgment passed by this Court in Ramchandra (supra) will

hold good in the present case since the samples were wrongly

collected. It cannot be assumed that all the bottles and tablets

[2023/RJJD/011535] (5 of 7) [SOSA-1226/2022]

contained contraband in them and the impediment as stipulated in

Section 37 of the NDPS Act will not be applicable in the present

case.

8. Hon'ble the Supreme Court has propounded guidelines on

the subject of bail in the case of Satender Kumar Antil (supra)

and has held as under:-

"41. Sub-section (2) has to be read along with Sub- section (1). The proviso to Sub-section (2) restricts the period of remand to a maximum of 15 days at a time. The second proviso prohibits an adjournment when the witnesses are in attendance except for special reasons, which are to be recorded. Certain reasons for seeking adjournment are held to be permissible. One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so notwithstanding the beneficial provision Under Section 436A of the Code which stands on a different footing.

42. ......

43. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available Under Section 436A would also be considered, the Courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant.

44. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred Under Section 436A of the Code among other factors ought to be considered for a favourable release on bail."

(Emphasis Supplied)

9. The accused-appellants are behind the bars since almost 5

years and 3 months in total and the hearing of appeal is likely to

take further more time, therefore, considering the overall facts

and circumstances of the case, more particularly, the fact that the

question is open to moot that whether all the other 33 bottles and

[2023/RJJD/011535] (6 of 7) [SOSA-1226/2022]

28 strips of tablets also contained psychotropic substances and

while refraining from passing any comments on the 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 appellants.

10. 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-appellants

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 is of the opinion that it is

a fit case for suspending the sentence awarded to the accused

appellants.

11. Accordingly, the applications for suspension of sentence filed

under Section 389 Cr.P.C. are allowed and it is ordered that the

sentence passed by Learned Additional Sessions Judge, NDPS

Cases, Sangaria, Dist. Hanumangarh in Sessions case No.

11/2018 vide judgment dated 12.07.2021 against the appellant-

applicants- Kashmir Singh S/o S. Mukhtiar Singh & Ram

Kumar @ Rakesh Kumar S/o Sh. Mohan Lal shall remain

suspended till final disposal of the aforesaid appeal and they shall

be released on bail provided each of them 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 25.05.2023 and whenever ordered to do so till the

disposal of the appeal on the conditions indicated below:-

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1. That they will appear before the trial Court in

the month of January of every year till the appeal

is decided.

2. That if the applicants changes the place of

residence, they will give in writing 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-applicants in a separate file. Such file be registered as

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

applicants 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 applicants does not appear before the trial court, the

learned trial Judge shall report the matter to the High Court for

cancellation of bail.