Kirtesh @ Kirta Ram vs State Of Rajasthan ...
2023 Latest Caselaw 8017 Raj

[2023:RJ-JD:33347]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 634/2023

Kirtesh @ Kirta Ram S/o Sh. Jalu Ram, Aged About 48 Years, Chokhla, Presently R/o Mahaveer Nagar, Badmer. (At Present Lodged In Central Jail, Jodhpur)

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

----Respondent

For Petitioner(s) : Mr. Ravindra Kumar Charan For Respondent(s) : Mr. Abhishek Purohit, AGA

HON'BLE MR. JUSTICE FARJAND ALI

Order

06/10/2023

1. The instant application for suspension of sentence has been

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

23.05.2023 passed by the learned Special Judge, NDPS Act Cases,

Balotra in Criminal Case No.01/2022 whereby he was convicted

and sentenced to suffer ten years' rigorous imprisonment along

with a fine of Rs.1,00,000/- under Section 8/15 of NDPS Act.

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. He

was on bail during trial and did not misuse the liberty so granted

[2023:RJ-JD:33347] (2 of 4) [SOSA-634/2023]

to him; 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

record.

5. Though, it is a case of recovery of huge quantity of

contraband poppy husk but the procedural defect made by the

prosecution led the case to a situation where grave suspicion

about the genesis of the allegation is raised and the benefit ought

to have been given to the accused. Besides, non-compliance of

mandatory provision stricto-sensu; the other grounds raised by

learned counsel for the appellant would be that the contraband

was not kept intact and for that, neither the Malkhana register, its

entries were produced in the trial nor the Malkhana In-charge got

examined in the course of trial. The samples which were sent to

the FSL were not in accordance with law and guidelines issued by

the Government of India vide Circular 01/1988 and no inventory

was prepared in this regard. As per the rules, the samples which

were to be sent to the FSL were supposed to be sent after the

inventory is made but no such procedure has been applied in this

case. The contention that it has not been proved beyond

reasonable doubt that soon after the seizure of the alleged

contraband and till its reaching to FSL, whether the contraband

[2023:RJ-JD:33347] (3 of 4) [SOSA-634/2023]

had been kept intact or not, of course, it would be a moot

question open to be argued.

6. Considering the submissions of learned counsel for the

parties and looking to the totality of facts and circumstances of

the case, more particularly the facts that the accused-appellant

was on bail during the course of trial and the matter pertains to

the year 2006 as well as the appellant has a strong arguable case

in his favour, the appeal has already been admitted and 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.

7. Accordingly, the application for suspension of sentence filed

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

sentence passed by learned Special Judge, NDPS Act Cases,

Balotra who passed the impugned order dated 23.05.2023 in

Criminal Case No.01/2022 against the appellant-applicant-

Kirtesh @ Kirta Ram S/o Sh. Jalu 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 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:-

[2023:RJ-JD:33347] (4 of 4) [SOSA-634/2023]

(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.

8. 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.

(FARJAND ALI),J 62-divya/-

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