Rajasthan High Court - Jodhpur

Pramod Kumar vs State Of Rajasthan (2024:Rj-Jd:10823) on 28 February, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:10823]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                 No. 1062/2023

                                           In

                     S.B. Criminal Appeal No.1009/2017

Pramod Kumar S/o Shri Sumer Singh, Aged About 32 Years, R/o
Dhani Panne Singh Post Ratnanagar Tehsil And Dist. Churu At
Present Lodged In Central Jail Bikaner
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan, Through P.P.
                                                                    ----Respondent


For Petitioner(s)            :     Mr. K.R. Bhati
For Respondent(s)            :     Mr. S.K. Bhati, PP



                HON'BLE MR. JUSTICE FARJAND ALI

Order

28/02/2024

1. The instant application for suspension of sentence has been

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

05.05.2017 passed by the learned Special Judge, NDPS Act Cases,

Hanumangarh in Sessions Case No.13/2014 whereby he was

convicted and sentenced under Section 8/15(c) NDPS Act to

suffer imprisonment of 12 years rigorous imprisonment and a fine

of Rs.1,20,000/- and in default to further undergo one year two

months rigorous imprisonment.

2. Bereft of elaborate details the facts of the case are that on

07.10.2013 a vehicle was intercepted by the police in which two

persons were sitting, out of which the appellant had apprehended

at the spot and the other person who was named as Guru Sevak

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Singh succeeded in making his escape good from the crime scene.

Upon making search and seizure, 25 gunny bags of poppy husk

got recovered and total weight of them was 460 Kgs. The

appellant was arrested and as a matter of fact, he is behind the

bars since 07.10.2013 and now more than ten years have elapsed.

Although it is reflecting that the total period of sentence as

calculated by the Superintendent, Central Jail, Bikaner is seven

years and three months till date but it is for the reason that the

appellant-applicant was lodged in one another case in which he

was convicted and sentenced prior to conviction in the instant

case. Since his conviction in another FIR No.676/2013 got effected

prior to conviction of the present matter, therefore, only seven

years custody has been computed in this case. Be that as it may,

technically it can be said that he is behind the bars for more than

seven years but infact in this particular case, he is behind the bars

for more than ten years and there is no hope of hearing the

appeal on merits in a near future.

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. he

placed reliance upon the landmark judgment of Satender Kumar

Antil vs. Central Bureau of Investigation and Ors. reported in

AIR 2022 SC 3386, the relevant aspect has been reiterated. As

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

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therefore, learned counsel for the appellant submits that the

sentence awarded to the accused-appellant may be suspended.

4. 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.

5. Heard learned counsel for the parties and perused the

material available on record.

6. In Petition for Special Leave to Appeal (Crl.) No. 2893/21

titled Manohar Lal Ainani Vs. State of Rajasthan & Anr., it

was held by Hon'ble the Apex Court vide order dated 15.11.2021

that an accused is entitled to be released on bail solely on the

ground of prolonged custody. It was held therein that owing to the

fact that the petitioner had spent near about six and a half years

in custody, thus, the top Court was inclined to grant bail to the

petitioner.

7. 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 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.

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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)

8. While coming to the merits of the instant case, it is observed

that a valid defence would be available to the appellant with

regard to total non-compliance of Section 52-A of the NDPS Act

as per which, the samples are supposed to be taken and sent to

the FSL in a particular way and having not done so, a serious

technical defect has indeed been occurred in the prosecution

case. The submission with regard to non-compliance of Section

42 of the NDPS Act ha also some weightage. If both the above

points are finally adjudicated in favour of the appellant then, it can

be said that he would succeed in appeal and may get acquittal.

TRPLhere is no hope of hearing of the appeal in a short period

because of voluminous pendency.

9. Considering the submissions of learned counsel for the

parties and looking to the totality of facts and circumstances of

the case, 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

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the appeal, this court is of the opinion that it is a fit case for

suspending the sentence awarded to the accused-appellant.

10. 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 who passed the impugned order 05.05.2017 in

Sessions Case No. 13/2014 against the appellant-applicant-

Pramod Kumar S/o Shri Sumer 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/- each to the

satisfaction of the learned trial Judge for his appearance in this

court on 08.04.2024 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.