Motilal vs State Of Rajasthan
2023 Latest Caselaw 5436 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc IInd Suspension Of Sentence Application (Appeal) No. 875/2023

Motilal S/o Shanti Lal, Aged About 20 Years, R/o Bhagwanpura, P.s. Baghana, District Neemuch (M.p.) (At Present Lodged At Central Jail, Udaipur)

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

----Respondent

For Petitioner(s) : Mr. Ravindra Kumar Charan For Respondent(s) : Mr. M. Khan, P.P.

HON'BLE MR. JUSTICE FARJAND ALI

Order

01/08/2023

1. The instant application for suspension of sentence has been

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

27.08.2021 passed by the learned Special Judge, NDPS Act Cases,

Pratapgarh in Sessions Trial No.57/2018 whereby he was

convicted and sentenced to suffer imprisonment of ten years'

rigorous imprisonment along with a fine of Rs. 1,00,000/- under

Section 8/15 of NDPS Act.

2. It is contended on behalf of the applicant that the instant

case is an example of flagrant violation of mandatory provisions of

the law since the compliance of Sections 42 and 50 has not been

made. As per the settled principle of law, it is required to be

established beyond every shadow of reasonable doubt that right

from the inception when the sample was taken, it remained intact

(2 of 4) [SOSA-875/2023]

till its reaching to FSL and the report was obtained. Herein, in this

case, the connected evidence which is necessary to link the

petitioner with the alleged recovery has lost credence due to

discrepancy appearing in between the statements of the

prosecution witnesses. He further submits 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.

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.

4. Heard learned counsel for the parties and perused the

material available on record.

5. The total weight of contraband poppy husk is not more than

57 kilogram along with the container (gunny bag). No separate

weight of the container (gunny bag) has been taken on record and

there is major contradiction in between the statements of

members of team of recovery. The appellant is behind the bars

since more than five years and the total sentence inflicted upon

him is ten years and as such he has suffered more than half of the

sentence. The hearing of the appeal is not going to be done in a

near future, thus, following the dicta passed by Hon'ble the

Supreme Court in the case of Mohd. Muslim @ Hussain Vs.

(3 of 4) [SOSA-875/2023]

State (NCT of Delhi) in Special Leave Petition (Crl) No. (s) 915

of 2023 by order dated 28.03.2023 and Rabi Prakash Vs. The

State of Odisha passed in Special Leave to Appeal (Crl) No. (s)

4169/2023 by order dated 13.07.2023, this Court deems it

appropriate to allow the instant application.

6. Considering the submissions of learned counsel for the

parties and looking to the totality of facts and circumstances of

the case, hearing of appeal is likely to take further more time and

considering the overall submissions 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.

7. 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,

Pratapgarh who passed the impugned order dated 27.08.2021 in

Sessions Trial No.57/2018 against the appellant-applicant- Motilal

S/o Shanti Lal 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 01.09.2023 and

whenever ordered to do so till the disposal of the appeal on the

conditions indicated below:-

(4 of 4) [SOSA-875/2023]

(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.

8. 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.

(FARJAND ALI),J 80-divya/-

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