Rajasthan High Court - Jodhpur

Sampat Lal vs State Of Rajasthan ... on 1 November, 2023

Bench: Farjand Ali

[2023:RJ-JD:37727]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1200/2022

Sampat Lal S/o Shri Kalu Ram Kumawat, Aged About 30 Years, Srinagar Sakliya, P.s. Fuliya Kallan, Dist. Bhilwara. (Raj.). (Presently Lodged At Dist. Jail, Chittorgarh).

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


For Petitioner(s)             :     Mr. Bhawani Singh
For Respondent(s)             :     Mr. A. R. Choudhary, PP



                HON'BLE MR. JUSTICE FARJAND ALI

                                       Order

01/11/2023

1. The instant application for suspension of sentence has been

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

13.07.2022 passed by the learned Special Judge, NDPS Act Cases

no.2, Chittorgarh in Sessions Case No.69/2019 (03/2018)

whereby he was convicted under Sections 8/15 as well as 8/25 of

the NDPS Act and sentenced to suffer maximum 10 years rigorous

imprisonment along with a fine of Rs.1,00,000/- and in default to

further undergo one year rigorous imprisonment.

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

bearing registration No. RJ06 UA 8092 was intercepted by the

police at the time of 'nakabandi' on mega highway near Thukrai

Chauraha on 26.07.2017 at about 12:00 P.M. During search, a

total of 10 plastic bags of poppy husk were found in the car. The

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total weight of the poppy husk was 200 Kilograms. Representative

samples of one kg each were collected from each of the 10 bags

for investigation and testing but they were later mixed together as

one sample weighing 10 kgs, out of which two samples each

weighing 500 grams marked as 'A'(control sample) and

'B'(chemical sample) were sent for investigation.

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.

There are several flaws and laches in the case of the prosecution.

As samples from each of the 10 bags were not drawn for testing

individually, it cannot be said with utmost certainty that each of

the packets contained poppy husk and that the quantity of the

recovered contraband is 200 kilograms. The appellant is in custody

since 26.07.2017, if he is not released on bail the very purpose of

filing the appeal would be frustrated. He placed reliance on the

Petition(s) for Special Leave to Appeal (Crl.) No(s) 2893/21 titled

Manohar Lal Ainani Vs. State of Rajasthan & Anr., wherein it

was held vide order dated 15.11.2021 that looking to the

prolonged custody period of the petitioner, bail shall be granted to

him in that matter. In another landmark judgment of Satender

Kumar Antil vs. Central Bureau of Investigation and Ors.

reported in AIR 2022 SC 3386, the aforesaid aspect has been

reiterated. Hearing of the appeal is likely to take long time,

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therefore, the application for suspension of sentence may be

granted.

4. Per contra, learned Public Prosecutor has vehemently

opposed the prayer made on behalf of the learned counsel for the

applicant and submits that the matter pertains to recovery huge

quantity of contraband 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. Heard and perused the material available on record as well

as gone through the statutory provisions applicable in the matter.

6. There is legal defect regarding mixing of the samples.

Admittedly, samples from each container has not been taken

individually rather the sample was collected from a mixture and

the same was sent to the FSL for chemical examination, which is

contrary to the Standing Order No.1/1988 issued by the

Government Of India. This court has passed a detailed order in

S.B. Criminal Misc. 3rd Bail Application No. 1162/2022;

Ramchandra v. State of Rajasthan, 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. The seizing officer(s) in the present case has not paid any

heed to these rules and the samples were not collected

individually so as to represent each of the small plastic polythenes

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rather samples were drawn from the admixtures contained in the

10 plastic bags.

7. 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)

8. Considering the overall facts and circumstances of the case

and looking to the fact that as some of the questions raised by the

learned counsel for the appellant deserves to be appreciated again

and if the same were decided in his favour, he may get acquittal;

out of total 10 years of sentence he has served almost 6 years

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and looking to voluminous pendency of the cases, there is no

likelihood of hearing of the appeal on merits in near future. 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.

8. Accordingly, the application for suspension of sentence filed

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

impugned order of sentence dated 13.07.2022 passed by learned

Special Judge, NDPS Act Cases no.2, Chittorgarh in Sessions Case

No.69/2019 (03/2018) against the appellant-applicant Sampat

Lal S/o Shri Kalu Ram Kumawat 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 01.12.2023 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.

(3) Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court.

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09. 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.