Rajasthan High Court - Jodhpur

Ashok @ Banshilal vs State Of Rajasthan ... on 6 November, 2023

Bench: Farjand Ali

[2023:RJ-JD:38876]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal 2nd Misc Suspension Of Sentence Application (Appeal) No. 1330/2023

Ashok @ Banshilal S/o Dalichand Dhakad, Aged About 40 Years, R/o- Mahupura, P.s. Singoli, Dist. Nimach (M.p.) (Presently Lodged In Jail, Chittorgarh)

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

----Respondent

For Petitioner(s) : Mr. M. L. Bishnoi For Respondent(s) : Mr. Mukhtiyar Khan, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

06/11/2023

1. The instant application for suspension of sentence has been

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

28.04.2022 passed by the learned Special Judge, NDPS Act No. 1,

Chittorgarh in Sessions Case No.53/2007 whereby he was

convicted under Sections 8/18(b) 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 two month 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.

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It is an admitted case of the prosecution that no notice under

Section 50 of NDPS Act was given to the petitioner before

searching him. He submits that the contraband was recovered on

26.05.2007 and the samples were taken on that same day,

however, the samples were sent for FSL on 04.06.2007. He is

behind the bars since last five years. 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. There are several flaws and laches in the case of the

prosecution. 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 by learned counsel for 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 Seizing officer Udai Singh has been examined in trial as

PW-7, a perusal of which is revealing that the response to a

pertinent question with regard to compliance of mandatory

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provision of the Act, officer has categorically replied that before

affecting search, no notice under Section 50 of the NDPS Act was

given to the accused. It is thus clear that the mandatory provision

of the Act has not been complied with. Hon'ble Supreme Court in

the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat

reported in AIR 2011 SC 77 has propounded that non compliance

of Section 50 could vitiate the recovery.

6. At the time of drawing of samples, a sample weighing 50

grams was drawn from each of the bags and sent for FSL,

however, a perusal of the FSL Report (Exhibit P-37) reveals that

the weight of the samples as mentioned under the Description of

Exhibits was 38.30 grams which places a serious doubt over the

case of the prosecution. This fact coupled with the fact that the

recovery was effected on 26.05.2007 and after that on

04.06.2007 when the samples were sent for FSL and there is no

information or update as to what transpired over the span of

seven days after collection of samples deeply impairs the

genuineness of the allegations and if the submission of the learned

counsel or the petitioner regarding previous enmity of the seizing

officer with the petitioner is taken unto account, then it cannot be

said with certainty that the case of the prosecution is based on

true allegations and there is no mala fide on part of the

investigating agency.

6. 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,

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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 expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding atrial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so notwithstanding the beneficial provision Under Section 436 A 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 436 A 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

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conferred Under Section 436 A of the Code among other factor sought to be considered for a favourable release on bail."

7. He is behind the bars for around 5 years. The appeal has

already been admitted by a coordinate bench of this Court. Thus,

considering the submissions made with regard to the long

incarceration as well as the grounds raised in the memo of appeal

regarding sustainability of judgment of conviction as well as

feeling that the embargo contained under Sections 32 and 37 of

the NDPS Act would not come in the way of releasing the

appellant on bail, this court is of the opinion that it is a fit case for

suspending the sentence awarded to the accused-appellant.

8. Accordingly, the instant 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 28.04.2022

passed by the learned Special Judge, NDPS Act No. 1, Chittorgarh

in Sessions Case No.53/2007 against the appellant-applicant

Ashok @ Banshilal S/o Dalichand Dhakad 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 08.12.2023 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.

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(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.

9. 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.