Rajasthan High Court

Ramandeep Son Of Shri Avtar Singh Sikh vs State Of Rajasthan (2024:Rj-Jp:10309) on 15 February, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JP:10309]                      (1 of 7)                     [SOSA-1476/2023]


        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

     S.B. Criminal Misc 2nd Suspension Of Sentence Application
                          (Appeal) No. 1476/2023

                                           In

                     S.B. Criminal Appeal No.807/2022

Jagseer Son Of Sukhdev Singh, Aged About 31 Years, Resident
Sidma Kala Tehsil Jagrao District Laudhina (Punjab) (Appellant
Confined In Central Jail Ajmer)
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan, Through Public Prosecutor

----Respondent Connected With S.B. Criminal Misc 2nd Suspension Of Sentence Application (Appeal) No. 161/2024 In S.B. Criminal Appeal No.1662/2022 Ramandeep Son Of Shri Avtar Singh Sikh, Aged About 41 Years, Resident Of Sidma Kalan, Tehsil Jagrav, District Ludhiyana, (Punjab) (At Present In Central Jail Ajmer)

----Petitioner Versus State Of Rajasthan, Through P.p

----Respondent

For Petitioner(s) : Mr. Vijay Singh Mr. Chain Singh Rathore For Respondent(s) : Mr. S.S. Mehla, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

15/02/2024

1. The instant applications for suspension of sentence have

been moved on behalf of the applicants in the matter of judgment

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dated 08.04.2022 passed by the learned Special Judge, NDPS Act,

Ajmer in Sessions Case No.04/2016 whereby they have been

convicted under Sections 8/18 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 one year's

simple imprisonment.

2. The first applications for suspension of sentence filed on

behalf of the applicants were dismissed as withdrawn vide order

dated 04.01.2023.

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. The

appellant is behind the bars since 06.07.2015. 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. Lastly, he submits that hearing of the appeal

would likely to take time, thus, their sentence may be suspended

during the pendency of the appeals.

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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. The appellants have been arrested in this case for having

possession of 1440 Kg poppy husk in their truck and they were

taken into custody on 06.07.2015. After a full-fledged trial, vide

judgment dated 08.04.2022 passed by the learned trial Court, the

appellants-applicants were convicted and sentenced as stated

above.

7. Indisputably, the Sub-Inspector Ravindra Singh, who

conducted search and seizure was not a posted SHO and he claims

that at the relevant point of time, he was having charge of the

police station but the question is highly debatable whether he was

a competent officer to effect search and seizure as per the

mandate under Section 42 of the NDPS Act and S.O. issued by the

Central Government in the year 1986. Since the question shall

finally be decided while disposing of the appeals but at this stage,

this Court feels that a strong plea is available with the appellants

to argue regarding non-compliance of Section 42 of the NDPS Act

and if the same is accepted in their favour, they may get acquittal.

Besides the above, it is also observed that the search and seizure

was not made strictly in accordance with the S.O. No.1/88 & 1/89

and Section 52-A of the NDPS Act. The detailed discussion in this

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regard shall be made at the time of final hearing of the appeals.

The law has mandated certain things to be done in a certain

manner and any deviation from the above has completely been

forbidden and is not acceptable to the Court of law, no matter if the

case pertains to recovery of huge quantity of contraband.

8. As a matter of fact, the appellants have been in custody for

almost 9 years and in view of the pendency of the cases and the

statistic in this regard, it can be assumed that early hearing of the

appeals will not be possible in near future and how much time the

appeals will take to reach the point of disposal cannot be

speculated today.

9. 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,

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

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

10. The appellants are behind the bars for around 9 years. The

appeals have already been admitted by 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

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

for suspending the sentence awarded to the accused-appellants.

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11. Accordingly, the instant applications for suspension of

sentence filed under Section 389 Cr.P.C. are allowed and it is

ordered that the impugned order of sentence dated 08.04.2022

passed by the learned Special Judge, NDPS Act, Ajmer in Sessions

Case No.4/2016 against the appellant-applicants Jagseer S/o

Sukhdev Singh and Ramandeep S/o Avtar Singh Sikh shall

remain suspended till final disposal of the aforesaid appeals and

they shall be released on bail provided each of them 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

their appearance in this court on 04.04.2024 and whenever

ordered to do so till the disposal of the appeals on the conditions

indicated below:-

(1) That they will appear before the trial Court in the month of January of every year till the appeal is decided.

(2) That if the applicants change the place of residence, they will give in writing their changed address to the trial Court as well as to the counsel in the High Court.