Sher Khan vs State Of Rajasthan ...
2023 Latest Caselaw 9013 Raj

[2023:RJ-JD:38079]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 678/2023

Sher Khan S/o Shri Jamdad Khan, Aged About 27 Years, R/o Kanora, Police Station Ranthanjana, District Pratapgarh. (Presently Lodged In District Jail, Pratapgarh)

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

----Respondent

For Petitioner(s) : Mr. Ramesh Purohit For Respondent(s) : Mr. Mahipal Bishnoi, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

03/11/2023

1. The instant application for suspension of sentence has been

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

31.05.2023 passed by the learned Special Judge, NDPS Act,

Pratapgarh in Sessions Case No.16/2018 whereby he was

convicted under Sections 8/21 of 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 of

rigorous imprisonment.

2. 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.

[2023:RJ-JD:38079] (2 of 5) [SOSA-678/2023]

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

He submits that there are major discrepancies in the weight of the

alleged recovered contraband recorded at different stages; at the

time of recovery; when the inventory was prepared by the Judicial

Magistrate; as well as when it was weighed in court during trial on

05.05.2022 which cast serious doubts regarding the actual weight

of the contraband. He also submits that during the time of alleged

recovery the weight of polythene bag, in which the contraband

was kept, was not measured and subtracted from the total weight

of the alleged contraband and if the same would have been done,

then the contraband would have measured less than 250 grams

which is below the commercial quantity. 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 learned counsel for the

applicant and submits that the matter pertains to recovery of 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.

4. Heard and perused the material available on record as well

as gone through the statutory provisions applicable in the matter.

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 Brown

[2023:RJ-JD:38079] (3 of 5) [SOSA-678/2023]

sugar is above the commercial quantity demarcated for it. As per

the seizure memo the total weight of the alleged recovered

contraband is 260 grams out of which two samples of 10 grams

each were taken for FSL Examination, so the remaining weight of

the alleged contraband is 240 grams. On 20.07.2017, 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 polythene was 235 grams excluding the weight of samples

but the total weight of the contraband contained in the polythene

as per the seizure memo is 240 grams. Now, it is pertinent to note

that the aggregate weight of the contraband as per inventory was

calculated without subtracting the weight of the polythene 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

polythene 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. While

[2023:RJ-JD:38079] (4 of 5) [SOSA-678/2023]

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.

5. 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 31.05.2023 passed by the

learned Special Judge, NDPS Act, Pratapgarh in Sessions Case

No.16/2018 against the appellant-applicant Sher Khan S/o Shri

Jamdad Khan 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 05.12.2023 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.

06. 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-

[2023:RJ-JD:38079] (5 of 5) [SOSA-678/2023]

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 69-Mamta/-

Powered by TCPDF (www.tcpdf.org)