Rajasthan High Court - Jodhpur

Manohar Lal vs State Of Rajasthan (2024:Rj-Jd:24450) on 27 May, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:24450]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                            JODHPUR
                         rd
     S.B. Criminal Misc 3 Suspension Of Sentence Application
                       (Appeal) No. 45/2024
                                          In
                     S.B. Criminal Appeal No.111/2021

Manohar Lal S/o Shri Rameshwar Lal, Aged About 37 Years, R/o
Nirdhari, Ghavgarh P.s., Dist Mandsaur, (Mp), Presently R/o
Suthi, Tehsil Nahargarh, Dist. Mandsaur (M.p.). (Lodged In Dist.
Jail, Bhilwara)
                                                   ----Petitioner
                             Versus
State Of Rajasthan, Through Pp
                                                 ----Respondent


For Petitioner(s)           :     Mr. B.R. Bishnoi
                                  Mr. Saddam
For Respondent(s)           :     Mr. Arun Kumar, PP



                HON'BLE MR. JUSTICE FARJAND ALI

Order

27/05/2024

1. The instant 3rd application for suspension of sentence has

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

dated 14.09.2021 passed by the learned Special Judge, NDPS

Cases, Bhilwara in Sessions Case No.62/2017 whereby they have

been convicted maximum sentence under Section 8/18 of the

NDPS Act and sentenced to suffer 14 years rigorous imprisonment

along with a fine of Rs.1,40,000/- and in default to further

undergo one year's rigorous imprisonment. His first and second

application for suspension of sentence being SBCRLM(SOSA)

Nos.134/2022 & 340/2023 have been dismissed vide orders dated

08.12.2022 and 26.07.2023.

2. It is contended on behalf of the applicant that the learned

trial Judge has not appreciated the correct, legal and factual

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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. As

the accused-applicant is behind the bars for more than 7 years. 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 appeal.

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

material available on record.

5. Perusal of the record revealing the facts of the instant case

are that on 06.04.2017 when the SHO Pramod Sharma with his

team during patrolling reached at the roadways bus stand, they

found that a man upon seeing them tried to hide himself

whereupon suspicion, he tried to escape but was apprehended and

upon asking, he disclosed his name to be Manohar Lal. Upon

making search, 4Kg 500 gms opium in were allegedly recovered

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from two plastic bags. The appellant-applicant was arrested and

since 06.04.2017, they are behind the bars. Now more than seven

years have elapsed. The appeal has been admitted for further

consideration and re-appreciation of the evidence but the same

could not have been done because of the dearth of time and

voluminous pendency. Even there seems no hope of hearing of the

appeal on merits in a near future, in these circumstances, 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 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

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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."

6. Besides the above, it is observed that there is total non-

compliance of Section 52-A of the NDPS Act/ the samples which

were collected by the police officer from the spot at the time of

recovery were sent to the FSL for detection of Morphine and

admittedly, neither the inventory was prepared nor samples were

taken in the presence of Magistrate and thus, no such samples

were sent to the FSL.

7. The appellant is behind the bars for more than 7 years. The

appeal has 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 suspending the sentence of the

appellants. In a recent judgment titled as Mohammed Khalid

and another Vs. The State of Telangana passed by Hon'ble the

Supreme Court in Criminal Appeal No(S). 1610 Of 2023 dated

01.03.2024, it was held that since no proceedings were

undertaken for preparing of inventory and drawings of samples as

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per Section 52-A of NDPS Act, thus, the FSL was considered to be

waste and was not considered worthy of being read in evidence on

the basis of this inter alia other aspects, Hon'ble the Apex Court

acquitted the appellants of all charges. The relevant paragraph of

the above judgment is reproduced as under:-

"22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P11) is nothing but a waste paper and cannot be read in evidence."

If the legal issues mentioned above are decided in favour of

the appellants then they may succeed in appeal and may get

acquittal but the same is not going to be done in near future,

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

the sentence awarded to the accused-appellants.

8. In Rabi Prakash Vs. State of Odisha passed in Special

leave to Appeal (Crl.) No.(s) 4169/2023, Hon'ble the Apex Court

has again passed an order dated 13th July, 2023 dealing this

issue and has held that the provisional liberty(bail) overrides the

prescribed impediment in the statute under Section 37 of the

NDPS Act as liberty directly hits one of the most precious

fundamental rights envisaged in the Constitution, that is, the

right to life and personal liberty contained in Article 21.

9. Accordingly, the application for suspension of sentence filed

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

impugned order of sentence dated 14.09.2021 passed by learned

Special Judge, NDPS Act Cases, Bhilwara in Sessions Case

No.62/2017 against the appellant-applicant Manohar Lal S/o

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Rameshwar 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 28.06.2024 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 change 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.