Rajasthan High Court - Jodhpur

Rajkumar vs State Of Rajasthan ... on 18 September, 2023

Bench: Farjand Ali

[2023:RJ-JD:30462]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 941/2023

Rajkumar S/o Sh. Devi Lal, Aged About 58 Years, B/c Soni R/o Ward No. 17 Sardulshehar Dist. Sri Ganganagar Raj. Lodged In Modern Jail Faridkot Punjab

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

----Respondent

For Petitioner(s) : Mr. Pradeep Shah Mr. C. S. Rathore For Respondent(s) : Mr. Anda Ram, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

18/09/2023

1. The instant application for suspension of sentence has been

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

31.07.2015 passed by the learned Special Judge, NDPS Act Cases,

Sri Ganganagar in Sessions Case No. 69/2014(08/2009) whereby

he was convicted and sentenced to suffer maximum punishment

of 16 years along with fine of Rs. 1,80,000/- under Sections 8/18

read with Section 29 of the NDPS Act.

2. Succinctly stated, the facts of the case relevant for disposal

of the present application for suspension of sentence are that

on 31.07.2008, at around 03.30 a.m., during nakabandi, two

vehicles were stopped on the basis of suspicion; out of which, the

appellant was present in one of the vehicles containing 7kg 200

gm contraband opium and 250 gms of contraband opium was also

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recovered from his pocket. Thereafter, he was taken in custody on

the same day.

3. Learned counsel for the appellant submits 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. The

co-accused has been released on bail by a co-ordinate bench of

this Court. He was on bail during trial and did not misuse the

liberty so granted to him; hearing of the appeal is likely to take

long time and he has already suffered a period of long

incarceration, therefore, the application for suspension of sentence

may be granted.

4. 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.

5. Heard learned counsel for the parties and perused the

material available on record.

6. It is worth considering that in another case related to

commission of offence under NDPS Act, the appellant was

convicted under Section 18 of NDPS Act and sentenced to suffer

12 years of imprisonment which was further reduced to 10 years

of imprisonment later in appeal and ultimately, he completed his

sentence in the aforesaid case on 22.12.2021. Though the cases

are two different matters, however, at this juncture, while

considering an application for suspension of sentence, it cannot be

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overlooked that the appellant has served a long period of ten

years behind bars already and post serving this term, he has also

suffered a further period of 1.9 years of incarceration in the

present matter, bringing it to a total of 15 years of incarceration.

Additionally, he has served a total of five years of incarceration in

the present matter uptil now. The submission of learned counsel

for the appellant that the co-accused in this case has already been

released on bail, thus, the appellant deserves to be released on

bail on the ground of parity seems to be worth considering.

10. Moving on to the impediments contained under Section 37 of

the NDPS Act, it is considered relevant to refer to the recent ruling

passed by Hon'ble the Supreme Court in Mohd Muslim @

Hussain V. State (NCT OF DELHI)1 wherein while discussing the

parameters of Section 37 of the NDPS Act, it was held that the

provision cannot be construed in a manner that would render the

grant of bail impossible. The accused-appellant in the afore-

mentioned case was directed to be enlarged on bail looking to the

long period of incarceration. The paragraphs of Mohd Muslim @

Hussain (supra) 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,

1 Special Leave Petition (CRL.) NO(S). 915 of 2023, decided on 28.03.2023.

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437 and 439, CrPC) 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 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."

(Emphasis Supplied)

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

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

submission made by learned counsel for the accused-appellant

regarding co-accused being released on bail, being enlightened by

the above-referred judgment of Hon'ble the Apex court as well as

keeping in mind the fact of subjection of accused to a longer

period of incarceration pending appeal, this court is inclined

towards suspending the sentence awarded to the accused-

appellant.

12. Considering the overall submissions of the parties and

looking to the totality of facts and circumstances of the case 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.

13. 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, Sri

Ganganagar in Sessions Case No. 69/2014(08/2009) against the

appellant-applicant -Rajkumar S/o Sh. Devi Lal 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 20.10.2023 and whenever ordered to do so till the

disposal of the appeal on the conditions indicated below:-

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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.

14. 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.