Rajasthan High Court - Jodhpur

Gulnawaz vs State Of Rajasthan (2024:Rj-Jd:25267) on 29 May, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:25267]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
     S.B. Criminal Misc 2nd Suspension Of Sentence Application
                           (Appeal) No. 502/2024

                                          In

                      S.B. Criminal Appeal No.31/2023

Nehpal Singh Rajput S/o Bhagwan Singh, Aged About 35 Years,
R/o Bhachundla, P.s. Salamgarh, Dist. Pratapgarh, Rajasthan.
(Presently Lodged In Central Jail, Udaipur).
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan, Through Pp
                                                                    ----Respondent
                                 Connected With
     S.B. Criminal Misc 2nd Suspension Of Sentence Application
                           (Appeal) No. 503/2024
                                          In

                     S.B. Criminal Appeal No.2054/2022

Gulnawaz S/o Meernawaz, Aged About 25 Years, R/o Naugaona,
Arnod Police Station, Dist. Pratapgarh. (Lodged In Dist. Jail,
Pratapgarh).
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan, Through Pp
                                                                    ----Respondent


For Petitioner(s)            :     Mr. Rahul Bhati
                                   Mr. Bharat Gurjar
For Respondent(s)            :     Mr. Abhishek Purohit, PP



                HON'BLE MR. JUSTICE FARJAND ALI

Order

29/05/2024

1. The instant 2nd applications for suspension of sentence has

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

[2024:RJ-JD:25267] (2 of 5) [SOSA-502/2024]

dated 05.11.2022 passed by the learned Special Judge, NDPS Act

Cases, Pratapgarh in Special Sessions Case No.31/2020 whereby

they were convicted and sentenced as under:-

Name of the Offence for Substantive Fine and default accused which sentence sentence convicted

1. Nehpal Singh Section 8/15 Thirteen years R.I. Fine of Rs.1,30,000/-

2. Gulnawaz of the NDPS and in default of Act payment of fine, additional of one year's and three months R.I..

2. The first applications for suspension of sentence of the

accused Nehpal Singh and Gulnawaz were dismissed as not

pressed by this Court vide orders dated 28.03.2023 being in S.B.

Criminal Misc. Suspension of Sentence Application Nos.246/2023

& 1234/2022. Hence, the instant applications for suspension of

sentence.

3. It is contended on behalf of the applicants 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.

They submit that applicants are behind the bars around five years.

Reliance has been placed 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

[2024:RJ-JD:25267] (3 of 5) [SOSA-502/2024]

Bureau of Investigation and Ors. reported in AIR 2022 SC

3386, the aforesaid aspect has been reiterated. Hearing of the

appeals are likely to take long time, therefore, the application for

suspension of sentence may be granted.

3. Per contra, learned public prosecutor has vehemently

opposed the prayer made on behalf of the accused-applicants for

releasing the appellants on applications for suspension of

sentence.

4. Heard learned counsel for the parties and perused the

material available on record.

5. It is emanating from the record that the applicants are

apprehended in this case on 18.11.2019 by the SHO Salamgarh

by intercepting a vehicle during nakabandi of a Jeep bearing

registration No.RJ35 UA1248 wherein upon search 4 gunny bags

containing poppy husk were recovered. After usual investigation,

they were charge-sheeted, tried, convicted and sentenced as

above. The appeals filed against the judgment of conviction and

order of sentence have been admitted in the year 2023 but there

seems no hope for hearing the appeal on merits in near future.

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 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

[2024:RJ-JD:25267] (4 of 5) [SOSA-502/2024]

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. Considering the overall facts and circumstances of the case

and looking to the fact that as some of the questions raised by the

learned counsel for the appellants deserves to be appreciated

again and if the same will be decided in their favour, they may get

acquittal; out of total 13 years of sentence they have served

around five years of the sentence and looking to voluminous

pendency of the cases, there is no likelihood of hearing of the

appeal on merits in near future, thus, while refraining from

passing any comments on the niceties of the matter, this court is

of the opinion that it is a fit case for suspending the sentence

awarded to the accused appellants.

8. Accordingly, the 2nd 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 05.11.2022 passed by the

learned Special Judge NDPS Act Cases, Pratapgarh in Sessions

Case No.31/2020 against the appellant-applicants Nehpal Singh

Rajput and Gulnawaz shall remain suspended till final disposal

[2024:RJ-JD:25267] (5 of 5) [SOSA-502/2024]

of the aforesaid appeal 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

03.07.2024 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 changes the place of residence, they will give in writing their changed addresses to the trial Court as well as to the counsel in the High Court.