Rajasthan High Court - Jodhpur

Mangilal vs State Of Rajasthan ... on 2 August, 2023

Bench: Farjand Ali

[2023:RJ-JD:24574]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 844/2023

S.B. Criminal Appeal No. 310/2022

Mangilal S/o Shri Birbalram @ Beeruram, Aged About 29 Years, B/c Bishnoi, R/o Bhela (Kanasar), Police Station Baap, District Jodhpur (Raj.) (At Present Lodged In District Jail, Bhilwara)

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

----Respondent Connected With S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 766/2023 IN

S.B. Criminal Appeal No. 334/2022

Ashok Kumar S/o Punaram, Aged About 30 Years, B/c Bishnoi, R/o Kanasar, Police Station Baap, Dist. Jodhpur. (At Present J.c. Dist. Jail Bhilwara)

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

----Respondent

For Petitioner(s) : Mr. Pritam Solanki Mr. M.L. Bishnoi For Respondent(s) : Mr. S.S. Rajpurohit, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

02/08/2023

1. The instant applications for suspension of sentence have

been moved in connection of the judgment impugned dated

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09.02.2022 passed by Learned Special Judge, NDPS Cases,

Bhilwara in Sessions case No. 26/2019 whereby the accused

appellants have been convicted and sentenced to suffer maximum

imprisonment of 10 years under Sections 8/15 of NDPS Act.

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

bearing registration No. DL 8 CP 3167 was intercepted by the

police at the time of 'nakabandi' on Swaroopganj Chauraha on

21.01.2019 at about 10:15 A.M. Upon suspicion, the police

officers searched the vehicle and during search, total six bags of

poppy husk were found in the car containing a total of 60

kilograms of Poppy husk which was seized by the police and the

seizing officer took 500 grams of poppy husk from each bag for

sampling respectively marked A (chemical sample) and B (control

sample) which were sent to FSL.

3. 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

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

submits that there are several flaws in the prosecution case on the

basis of which the judgment of conviction is not sustainable. The

appellant has spent about 4 years and 07 months in custody and

he has served almost half of the sentence, if he 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

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argument that looking to the long period of incarceration, the

sentence of the applicant deserves to be suspended. He further

submits that there are major discrepancies in the weight of the

alleged recovered contraband mentioned in the FIR and the

inventory prepared by the Judicial Magistrate which casts serious

doubts regarding the actual weight of the contraband. He also

submits that during the time of alleged recovery the individual

weights of 6 gunny bags, in which the contraband was kept, were

not measured and subtracted from the total weight of the alleged

contraband. As the hearing of the appeal will take long time to

conclude, therefore, learned counsel for the appellant submits that

the sentence awarded to the accused-appellant may be

suspended.

4. 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 of 60 kilograms

of poppy husk and the judgment of conviction passed by learned

Court below does not warrant any interference. The impediment

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

attracted in the factual situation of the present case.

5. After thoroughly evaluating the record and considering the

overall submissions, it is observed that there is inadequate proof

to establish that the total weight of the recovered contraband

poppy husk is above the commercial quantity demarcated for it.

On 19.03.2019, the inventory was prepared by the Judicial

Magistrate and a perusal of the same reveals that the total weight

of the contraband contained in the six bags was 51.330 Kilograms

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excluding the weight of samples but the total weight of the

contraband contained in the six bags as per the seizure memo is

60 kilograms. Now, it is pertinent to note that the aggregate

weight of the contraband as per inventory was calculated without

subtracting the weight of the gunny bags and the aggregate as

mentioned above is touching the upper threshold of the

commercial quantity demarcated for this specific contraband in the

statute, thus, it is natural to suspect that if the weight of the six

gunny bags would have been subtracted then the aggregate as

per the inventory might not have qualified in the category of

commercial quantity and the possibility of the same happening

cannot be ruled out at this stage. Additionally, there is serious

discrepancy between the total weight reflecting in the inventory

and the total weight reflecting in the seizure memo albeit the

weight of the samples was subtracted before calculating the total

weight while preparing the inventory but even if the total weight

of the samples is added to the weight of the contraband in the

inventory, it falls short of the total weight as reflected in the

seizure memo by a substantial amount, thus, putting another

question mark upon the genuineness of the allegations.

6. As far as the question of fetter contained under Section 37 of

NDPS Act is concerned, this Court is aptly guided by the recent

ruling titled Mohd Muslim @ Hussain Vs. State (NCT of Delhi)

passed by Hon'ble the Supreme Court in Special Leave Petition

(Crl.) No. 915 of 2023 vide order dated 28.03.2023, wherein

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

accused was allowed to be released on bail while holding that the

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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

paragraphs of the afore-mentioned judgment 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, 437 and 439, Code of Criminal Procedure) 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

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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."

7. In Rabi Prakash Vs. State of Odisha passed in Special

leave to Appeal (Crl.) No.(s) 4169/2023, Hon'ble the Apex Court

has again passed an order dated 13 th July, 2023 dealing this issue

and has held that the provisional liberty (bail) overrides the

prescribed impediment in the statute under Section 37 of the

NDPS Act as liberty directly hits one of the most precious

fundamental rights envisaged in the Constitution, that is, the right

to life and personal liberty contained in Article 21.

8. In view of the guidelines propounded by Hon'ble the

Supreme Court in the case of Satender Kumar Antil (supra)

on the subject of bail on the ground of long period of

incarceration, the sentence of the present applicant deserves to be

suspended. The relevant paragraphs of the afore-mentioned

judgment are as follows:-

"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

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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-appellant is behind the bars since almost 4

years and 7 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, 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 deems its appropriate to suspend the

sentence awarded to the appellant till the final disposal of the

appeal.

10. 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 the Learned Special Judge, NDPS Cases,

Bhilwara vide judgment dated 09.02.2022 in Sessions case No.

26/2019 against the appellant-applicants- Mangilal S/o Shri

Birbalram @ Beeruram and Ashok Kumar S/o Punaram,

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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/- each to the satisfaction of the learned trial Judge for

their appearance in this court on 04.08.2023 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.