Rajasthan High Court - Jodhpur
Ashok vs State Of Rajasthan on 6 December, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2023:RJ-JD:42061]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. II Suspension Of Sentence Application
(Appeal) No. 219/2023
in
S.B. Criminal Appeal No.1293/2021
Ashok S/o Mangi Lal Sharma, Aged About 47 Years, R/o Bengu,
Ps Bengu, District Chittorgarh, Raj.
----Petitioner
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Petitioner(s) : Mr. Ram Niwas
For Respondent(s) : Mr. Laxman Solanki, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
Reserved on 04/12/2023
Pronounced 06/12/2023
1. This criminal misc. second application for suspension of
sentence under Section 389 of the Code of Criminal Procedure has
been filed seeking suspension of sentence awarded to the
applicant-appellant vide the impugned judgment of conviction and
order of sentence dated 17.11.2021 passed by the learned Special
Judge, NDPS Act Cases No.1, Chittorgrah in Sessions Case
No.58/2007 (CIS No. 550/2007), whereby while convicting the
applicant-appellant for the offences under Sections 8/15 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short,
'NDPS Act'), the applicant-appellant was ordered to undergo 14
years' rigorous imprisonment, alongwith a fine of Rs.1,50,000/-
[2023:RJ-JD:42061] (2 of 5) [SOSA-219/2023]
each, in default of payment of which, applicant-appellant was
ordered to undergo further one year's rigorous imprisonment.
2. Learned counsel for the applicant-appellant submitted that
co-accused namely Ghewar Ram was already enlarged on bail by
this Hon'ble Court and the case of the present applicant-appellant
is on a similar footing, and therefore, the sentence awarded to
him vide the impugned judgment deserves to be suspended.
2.1. Learned counsel further submitted that the PW-3, PW-4 and
PW-5 had already turned hostile and there is no strong evidence
against the applicant-appellant so as to justify continuance of this
custody in this case.
2.2. Learned counsel also submitted that the concerned police
authority at time of collecting the samples of the contraband in
question, mixed the samples thereof, and therefore, the seizure in
question was not conducted as per the provisions of the NDPS Act.
2.3. Learned counsel further submitted that the concerned police
authority sent the sample of the contraband in question after 5
days of collection. It was also submitted that the concerned police
authority violated the mandatory provisions of the NDPS Act and it
was sufficient for suspension of the sentence awarded to the
applicant-appellant vide the impugned judgment.
2.4. In support of such submissions, learned counsel relied upon
the following judgments:-
(a) Simarnjit Singh Vs State of Rajasthan (Criminal Appeal No.
1443 of 2023, decided on 09.05.2023) by the Hon'ble Apex Court;
(b) Sarija Banu (A) Janarthani @ Janani & Anr. Vs State (2004)
12 SCC 266;
[2023:RJ-JD:42061] (3 of 5) [SOSA-219/2023]
(c) Om Prakash Vs State of Rajasthan (S.B. Criminal Misc II
Suspension of Sentence Application (Appeal) No. 191/2018,
decided on 16.02.2021) by a Coordinate Bench of this Hon'ble
Court;
(d) Shahrukh Khan Vs State (S.B. Criminal Misc Suspension of
Sentence Application (Appeal) No. 302/2020, decided on
07.05.2020) by a Coordinate Bench of this Hon'ble Court;
(e) Vinod Gupta Vs State of Rajasthan (S.B. Criminal Misc 4 th
Bail Application No. 14283/2022, decided on 20.04.2023) by this
Hon'ble Court;
(f) Nagu Singh Vs State of Rajasthan (S.B. Criminal Appeal No.
931/2015, decided 10.05.2016) by a Coordinate Bench of this
Hon'ble Court;
(g) Rama Ram Vs State of Rajasthan (S.B. Criminal Misc 2 nd Bail
Application No. 11205/2021, decided on 01.09.2021) by
Coordinate Bench of this Hon'ble Court;
(h) State of Rajasthan Vs Jag Raj Singh @ Hansa (Criminal Appeal
No. 1233/2006, decided on 29.06.2016) by the Hon'ble Apex
Court.
3. On the other hand, learned Public Prosecutor, while opposing
the suspension of sentence application, submitted that the
applicant-appellant was convicted by the learned Trial Court after
taking into due consideration the overall facts and circumstances
of the case and the evidences placed on record before it. Thus, the
present second application for suspension of sentence ought not
to be entertained by this Court.
3.1. It was further submitted that the concerned police authority
followed all the procedures as provided under the NDPS Act at the
[2023:RJ-JD:42061] (4 of 5) [SOSA-219/2023]
time of search and seizure of the contraband in question, and
therefore, applicant-appellant is not entitled for any indulgence by
this Court in this case.
4. Heard learned counsel for the parties as well as perused the
record of the case as well as the judgments cited at the Bar.
5. This Court observes that the applicants-appellants were
convicted for the offences under Sections 8/15 of the NDPS Act,
and that, the first application for suspension of sentence was
rejected by this Court vide order dated 28.04.2022 passed in S.B.
Criminal Misc. Suspension of Sentence Application (Appeal)
No.109/2022.
6. This Court further observes that total 5 quintals 75 kgs.
Doda Post (poppy straw) was recovered from the applicant-
appellant and other co-accused and thereafter, the applicant-
appellant was convicted vide the impugned judgment passed by
the learned Trial Court.
7. This Court also observes that the applicant-appellant was
convicted in connection with an offence of a very serious nature
and a very large quantity of contraband was recovered in this case
from the present applicant-appellant, and on that count also, he is
not entitled for any indulgence by this Court in the present
application.
8. This Court further observes that previously, the first
suspension of sentence was dismissed by the this Court, and no
material has been placed before this Court on behalf of the
applicant-appellant to show any subsequent development or
change in circumstances, which could entitle the applicant-
[2023:RJ-JD:42061] (5 of 5) [SOSA-219/2023]
appellant for any indulgence by this Court in the present
application, at this stage.
9. The judgments cited at the Bar on behalf of applicant-
appellant also do not render any assistance to his case in the
present application.
10. Consequently, the present second application for suspension
of sentence is dismissed.
(DR.PUSHPENDRA SINGH BHATI),J
SKant/-
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