Rajasthan High Court - Jodhpur

Bhajanlal vs State Of Rajasthan ... on 24 April, 2023

Bench: Farjand Ali

[2023/RJJD/011721]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 247/2023

Bhajanlal S/o Mohanram, Aged About 31 Years, R/o Chak 13 K.s.p. Munda, Police Station, Hanumangarh Town, District Hanumangarh (Raj.) (Presently Lodged At Central Jail, Bikaner)

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

----Respondent

For Petitioner(s) : Mr. Nishant Bora For Respondent(s) : Mr. Gaurav Singh, P.P.

HON'BLE MR. JUSTICE FARJAND ALI

Order

24/04/2023

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment dated

25.01.2023 passed by the learned Special Judge, NDPS Act Cases,

Hanumangarh in Sessions Case No. 02/2018 whereby he was

convicted and sentenced to suffer maximum punishment of 10

years along with fine of Rs. 1,00,000/- under Section 8/22 of the

NDPS Act.

2. Succinctly stated, the facts of the case relevant for disposal

of the present application for suspension of sentence are that on

07.07.2017, upon receiving information regarding selling of illegal

drugs by the applicant at his medical store in Malkokan,

Hanumangarh, the police reached his store after sending the

information reagrding the illegal drugs to the S.P., Hanumangarh

[2023/RJJD/011721] (2 of 7) [SOSA-247/2023]

in compliance of Section 42 of the NDPS Act. Upon suspicion and

after informing the petitioner about his right under Section 50 of

the N.D.P.S. Act, the RPS Officer, Ms. Mamta and the Drug Control

Officer, Ms. Sukhdeep Kaur conducted search of the store and

found strips of 'digifresh 0.5' tablets stored in three small-sized

cardboard containers. Ms. Sukhdeep Kaur inspected the said strips

and submitted a report to Ms. Mamta wherein it was claimed by

her that all of these tablets contain some quantity of 'Alprazolam'

which is in contravention of the NDPS Act.

3. While the tablets were being counted, it was found that there

were two batches of tablets, namely Batch No. DVNTC232 and

Batch No. DVNTC121. There were 27 strips containing 50 tablets

each in Batch No. DVNTC232 and 18 strips containing 50 tablets

each in Batch No. DVNTC121. The license that the applicant had

did not contain permission for 10 drugs including Alprazolam. A

tablet was taken out of one of the 27 strips of Batch No.

DVNTC232 and weighed. The weight of the tablet was 150

milligrams. Similarly, a tablet was taken out of one of the 18

strips of Batch No. DVNTC121 and its weight was also 150

miligrams, thus, the gross weight of 2250 tablets of Alprazolam

found at the medical store was 337.5 grams which is way above

the commercial quantity specified for Alprazolam. A case was

lodged against the accused for commission of offence under

Section 8/22 of NDPS Act.

4. Learned counsel for the 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

[2023/RJJD/011721] (3 of 7) [SOSA-247/2023]

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

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

was on bail during trial and did not misuse the liberty so granted

to him; hearing of the appeal is likely to take long time, therefore,

the application for suspension of sentence may be granted.

5. It is further submitted that there is a strong prima facie in

favour of the appellant and that the Drug Control Officer Ms.

Sukhdeep Kaur who had conducted the search and recovered the

contraband was not produced as a witness by the prosecution

during trial which gives rise to distrust on the story of the

prosecution.

6. Per contra, learned AGA vehemently opposes the prayer

made by learned counsel for the accused-applicant for releasing

the appellant on application for suspension of sentence and

submits that the recovered contraband weighs way above the

commercial quantity demarcated for Alprazolam.

7. Heard learned counsel for the parties and perused the

material available on record.

8. The submission of learned counsel for the accused-appellant

that a material witness was not produced by the prosecution for

examination in the trial is worth contemplating. Sukhdeep Kaur

was the Drug Control Officer who conducted the search and

recovered the contraband from the medical store of the accused-

appellant. He prepared a report of the same and submitted to the

S.H.O. A perusal of the testimony of PW-02 Major Singh Gill as

well as the attestation by the accused-appellant upon the notice

given under Section 50 of NDPS Act, inter alia other documents.

[2023/RJJD/011721] (4 of 7) [SOSA-247/2023]

confirm and corroborate the above fact. The fact that a witness

who conducted the search & seizure and played a vital role in the

investigation was not produced as a prosecution witness puts the

stance of the prosecution under a precarious lens and is fatal to

the case of the prosecution.

9. The fact that the seizing officer was not made to depose or

was not projected as a prosecution witness raises serious doubts

regarding the recovery as well and it is questionable whether the

recovery was found proved or not.

10. Moving on to the impediments contained under Section 37 of

the NDPS Act, it is considered relevant to refer to the recent ruling

passed by Hon'ble the Supreme Court in Mohd Muslim @

Hussain V. State (NCT OF DELHI)1 wherein while discussing the

parameters of Section 37 of the NDPS Act, it was held that the

provision cannot be construed in a manner that would render the

grant of bail impossible. The accused-appellant in the afore-

mentioned case was directed to be enlarged on bail looking to the

long period of incarceration. The paragraphs of Mohd Muslim @

Hussain (supra) relevant to the present matter are 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 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,

1 Special Leave Petition (CRL.) NO(S). 915 of 2023, decided on 28.03.2023.

[2023/RJJD/011721] (5 of 7) [SOSA-247/2023]

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 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."

(Emphasis Supplied)

[2023/RJJD/011721] (6 of 7) [SOSA-247/2023]

11. 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-appellant

regarding non-production of a material witness, being enlightened

by the above-referred judgment of Hon'ble the Apex court as well

as keeping in mind the fact of subjection of accused to a longer

period of incarceration pending appeal, this court is inclined

towards suspending the sentence awarded to the accused-

appellant.

12. Considering the overall submissions of the parties and

looking to the totality of facts and circumstances of the case 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-appellant.

13. 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,

Hanumangarh in Sessions Case No. 02/2018 against the

appellant-applicant - Bhajanlal S/o Mohanram 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 25.05.2023 and whenever ordered to do so till the

disposal of the appeal on the conditions indicated below:-

[2023/RJJD/011721] (7 of 7) [SOSA-247/2023]

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.

14. 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-

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.