Rajasthan High Court - Jodhpur

Jai Kishan @ Lali vs State Of Rajasthan ... on 14 September, 2023

Bench: Farjand Ali

[2023:RJ-JD:32075]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 240/2023

S.B. Criminal Appeal No.331/2023,

Jai Kishan @ Lali S/o Arjun Singh, Aged About 19 Years, R/o Ward No. 09 Lakhuwali Hanumangarh Town Dist. Hanumangarh (Presently Lodged At Dist. Jail Hanumangarh)

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

----Respondent

For Petitioner(s) : Mr. Pankaj Gupta For Respondent(s) : Mr.S.S. Rajpurohit, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

14/09/2023

1. The instant application for suspension of sentence has been

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

02.02.2023 passed by the learned Special Judge, NDPS Act cases,

Hanumangarh in Sessions Case No.34/2019(CIS No.34/2017)

whereby he was convicted and sentenced to 10 years rigorous

imprisonment under Sections 8/22 of NDPS Act.

2. Learned counsel for the accused-appellant submits that the

trial court has grossly erred in convicting and sentencing the

accused-appellant. The appellant is in custody since 22.10.2018, if

he is not released on bail the very purpose of filing the appeal

would be frustrated. He further submits two cases were lodged for

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alleged recovery of medicinal drugs, at different time and place;

but surprisingly the batch number of the separately recovered

drugs are the same which create a serious doubt in the genuiness

of the alleged seizure. 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. As the

hearing of the appeal will take long time to conclude, therefore,

learned counsel for the appellant submits that the sentence

awarded to the accused-appellant may be suspended.

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 huge

quantity of medicinal drugs and the judgment of conviction passed

by learned Court below does not warrant any interference. As per

the custody certificate submitted by learned Public Prosecutor, the

appellant has suffered imprisonment for almost 5 years. 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.

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5. This Court is cognizant of the provisions contained in Section

32-A and Section 37 of the NDPS Act but considering the

submissions made by learned counsel for the accused-appellant

regarding non-compliance of statutory procedure and keeping in

mind the fact of subjection of accused to long period of

incarceration pending appeal this Court is aptly guided by the

recent ruling titled Mohd Muslim @ Hussain Vs. State (NCT of

Delhi) passed by Hon'ble the Supreme Court in Special Leave

Petition (Crl.) No. 915 of 2023 vide order dated 28.03.2023,

wherein Section 37 of the NDPS Act has been discussed in detail

and the accused was allowed to be released on bail while holding

that the impediment contained under Section 37 is not a bar to

grant of bail in cases where there is undue delay in conclusion of

trial. The paragraphs of the afore-mentioned judgment relevant to

the present matter are reproduced below:

"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the Accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, Code of Criminal Procedure) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the Accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be

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assessed by courts, require that the court records its satisfaction that the Accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the Accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the Accused and the likelihood of them not committing any offence upon release. This Court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when Accused of offences enacted under special laws - be balanced against the public interest.

19. A plain and literal interpretation of the conditions Under Section 37 (i.e., that Court should be satisfied that the Accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted Under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the Accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person Accused of offences such as those enacted Under Section 37 of the NDPS Act."

6. 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

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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)

7. The accused-appellant is behind the bars since almost 5

years and the hearing of appeal is likely to take further more time.

Considering the overall submissions and looking to the totality of

facts and circumstances of the case as well as the fact that P.W. 2

Ramkesh, Seizing Officer admits in cross examination that he was

having previous information in respect of possession of the

contraband with the petitioner but the compliance of Section 42 of

the Act has not been made and looking to the fact that two cases

were registered for the recovery of medicinal drugs at different

time and place but the batch numbers of separately recovered

drugs are the same persuaded this Court to make indulgence. The

submission raised on behalf of petitioner with regard to total non-

compliance of Section 42 (2) of the NDPS Act cannot be ignored

and the same shall be considered at the time of final hearing of

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the appeal, but at this stage; refraining from passing any

comments on the niceties of the matter and the defects of the

prosecution, 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

sentence passed by learned Special Judge, NDPS Act cases,

Hanumangarh in Criminal regular Case No.34/2019(CIS

No.34/2019) vide judgment dated 02.02.2023 against the

appellant-applicant- Jaikishan @ Lali S/o Arjun Singh 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/- to the

satisfaction of the learned trial Judge for his appearance in this

court on 31.10.2023 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 their changed address to the trial Court as well as to the counsel in the High Court.