Rajasthan High Court - Jodhpur

Dhanna Ram vs State Of Rajasthan (2024:Rj-Jd:39985) on 24 September, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:39985]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
     S.B. Criminal Misc 2nd Suspension Of Sentence Application
                           (Appeal) No. 57/2024

                                          In

                     S.B. Criminal Appeal No.498/2023

Dhanna Ram S/o Rampratap, Aged About 24 Years, R/o
Rawatsar, Tehsil Rawatsar, District Hanumangarh, Raj. (At
Present Lodged In Central Jail, Bikaner)
                                                                     ----Petitioner
                                      Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)           :     Mr. Sanjay Bishnoi
For Respondent(s)           :     Mr. Rajesh Bhati, AGA



                HON'BLE MR. JUSTICE FARJAND ALI

Order

24/09/2024

1. The instant second application for suspension of sentence

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

judgment dated 15.04.2023 passed by the learned Special Judge,

NDPS Act Cases-cum-Additional Sessions Judge No.1, Nohar,

District Hanumangarh in Sessions Case No.73/2019 whereby he

was convicted under Section 8/22 of the NDPS Act and sentenced

to suffer 15 years rigorous imprisonment along with a fine of

Rs.1,50,000/- and in default to further undergo one month's

rigorous imprisonment. His first application for suspension of

sentence was dismissed as not pressed by this Court vide order

dated 06.10.2023 passed in S.B. Criminal Misc. Suspension of

Sentence Application No.412/2023 but a liberty was granted to

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him to renew the prayer if the appeal is not heard within a

reasonable period. Hence, the instant application for suspension of

sentence.

2. 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

submitted that the Seizing Officer collected the samples from the

spot and sent to the FSL for its examination thus, Section 52-A of

the NDPS Act has not been complied with. 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. Hearing of the appeal is 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-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.

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5. It is emanating from the record that the applicant is in

custody in this case since 19.05.2019 for the accusation that

during patrolling near Chak 22 AG Taranagar road upon

suspicion, the SHO Mohd. Anwar alongwith his team on seeing a

person who was having a bag on his shoulder was interrogated. In

response, he disclosed his name as Dhanna Ram and on search

being made, 30 boxes containing 6000 PRVORN-SPAS were

recovered. The samples were taken by the SHO from the

recovered contraband for sending the same to the FSL. After

search and seizure, the accused Dhanna Ram was arrested,

charge sheeted, tried and then convicted for the offence under

Section 8/22 of the NDPS Act and sentenced to suffer 15 years

imprisonment.

6. It is an admitted fact situation that neither inventory has

been prepared nor samples were taken in the presence of a

Magistrate. As per Section 52-A of the NDPS Act, and Standing

Order No.1/89, issued by the Government, it was imperative upon

the police officer to prepare an inventory and take samples in the

presence of a Magistrate so as to sanctify the process of seizure

and presence of contraband in possession of the accused. Having

not done so, the Investigating Agency has committed a grave

error and as such, the FSL report would not help the case of the

prosecution. Besides the above, the appeal has been admitted by

this Court on 03.05.2023 for the purpose of making a further

appreciation of evidence. Being the first appellate Court, this

Court is supposed to scrutinize the material brought on record

again so as to verify the finding of guilt but owing to the pendency

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of the appeals, there seems no hope of hearing the appeal in a

near future.

7. In the given circumstances and in view of the fact that

mandate of law provided Section 52-A has not been complied

with, the Court should lean towards leniency in granting bail.

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.

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

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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)

If the pleas raised by the defence which have substance, are

finally decided in favour of the accused and against the

prosecution then certainly the appellant may be acquitted from

the charge and in that situation it would not be possible for this

Court to return back him the days of long eight years, which he

spent behind the bars.

8. In another 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, wherein it was held that since no proceedings were

undertaken for preparing of inventory and drawings of samples as

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

a 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,

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the FSL report(Exhibit P11) is nothing but a waste paper and cannot be read in evidence."

9. 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 appellant deserves to be appreciated again

and if the same will be decided in his favour, he may get acquittal;

he has served more than five and half years 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 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.

10. Accordingly, the second 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 15.04.2023

passed by learned Special Judge, NDPS Act Cases-cum-Additional

Sessions Judge No.1, Nohar Hanumangarh in Sessions Case

No.73/2019 against the appellant-applicant Dhanna Ram S/o

Rampratap 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 05.11.2024 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.