Rajasthan High Court - Jodhpur

Kheraj Ram vs State Of Rajasthan ... on 3 October, 2023

Bench: Farjand Ali

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 682/2023

S.B. Criminal Appeal No.1208/2023.

Kheraj Ram S/o Sh. Uma Ram, Aged About 40 Years, Bhojasar, Baitu Police Station, Dist. Barmer. (Lodged In Dist. Jail, Jalore).

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


For Petitioner(s)             :    Mr. B.R. Bishnoi
For Respondent(s)             :    Mr. Gaurav Singh, PP



                HON'BLE MR. JUSTICE FARJAND ALI

                                        Order

03/10/2023

1. The instant application for suspension of sentence has been

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

09.06.2023 passed by the learned Special Judge, NDPS Cases,

Jalore in Sessions Case No.8/2016 whereby he was convicted

under Section 8/15 r.w. Section 8/29 of the NDPS Act and

sentenced to suffer 10 years rigorous imprisonment along with a

fine of Rs.1,00,000/- and in default to further undergo two years'

rigorous imprisonment.

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

bearing registration No. RJ04 TA 0915 was intercepted by the

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

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Tiraha on 23.05.2011 at about 02:25 A.M. During search, a total

of 19 jute bags of poppy husk were found in the car. The total

weight of the poppy husk was 320 Kilograms. Representative

samples of one kg each were collected from each of the 19 jute

bags for investigation and testing but they were later mixed

together as one sample weighing 19 kgs, out of which two

samples 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. As

samples from each of the 19 bags were not drawn for testing, it

cannot be said with utmost certainty that each of the packets

contained poppy husk and that the quantity of the recovered

contraband is 399 kilograms. 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 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. Perusal of the record revealed that the incident took place on

23.05.2011. It is an admitted case of the prosecution that when

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the vehicle in question was intercepted, allegedly certain quantity

of contraband was recovered therein; no one was present at the

spot. It is the case of the prosecution that during investigation,

the petitioner has been arraigned as an accused in this case on

the sole count that he is the registered owner of the vehicle. The

document Ex.D/1, is a sale note executed between the petitioner

and the buyer Kanwara Ram which is well before the date of

incident. As per Ex.D/1, the petitioner had handed over the control

and possession of the vehicle to Kanwara Ram and even during

the course of investigation, the document Ex.D/1 had been

brought into the notice of the Investigating Officer but no

investigation has been carried out in this regard. At one hand,

there is no either direct or indirect evidence to show any nexus

between the petitioner and the alleged recovered contraband but

on the other hand, Ex.D/1 available on record suggesting his own

concern with the vehicle or the incident. He has been made an

accused simply on the count of his being a registered owner of the

vehicle in question. However, no other evidence has been brought

on record so as to establish the fact that the petitioner was having

knowledge regarding illegal transportation of contraband through

his vehicle or he permitted any other person to do so.

6. There is another 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

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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

rather samples were drawn from the admixtures contained in the

19 jute bags.

7. Considering the submissions of learned counsel for the

parties and looking to the totality of facts and circumstances of

the case, and the fact that the hearing of appeal is likely to take

further more time and considering the overall submissions 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 09.06.2023 passed by learned

Special Judge, NDPS Act Cases, Jalore in Sessions Case No.8/2016

against the appellant-applicant Kheraj Ram S/o Uma Ram shall

remain suspended till final disposal of the aforesaid appeal and he

shall be released on bail provided he executes a personal bond in

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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 06.11.2023 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.