Rajasthan High Court - Jodhpur
Umesh Sharma @ Viky Sipi vs State Of Rajasthan (2025:Rj-Jd:18339) on 9 April, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:18339]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 1035/2024
Naresh Kumar @ Sonu S/o Shri Laxman Das, Aged About 35
Years, R/o Ward No. 9, Near Mochiyon Ki Dharamshala, Nohar,
Dist. Hanumangarh,raj. (At Present Lodged In Central Jail,
Sriganganagar)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 1663/2023
Umesh Sharma @ Viky Sipi S/o Ramprasad Sharma, Aged About
30 Years, Resident Of Hanotiya Bujurg, Rawli Road, Tehsil Niwai,
Distt. Tonk, Presently R/o As Tenant Of Rambabu Yadav, Purani
Basti, Futakot Chandpole, Distt. Jaipur (Raj) (At Present Lodged
In Central Jail Bikaner)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Rajesh Saharan
Mr. Suresh Nehra
For Respondent(s) : Mr. Vikram Rajpurohit, DyGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
09/04/2025
1. These two applications for suspension of sentence have been
moved on behalf of the appellant-applicants in the matter of
judgment of conviction dated 29.11.2023 and order of sentence
[2025:RJ-JD:18339] (2 of 5) [SOSA-1035/2024]
dated 30.11.2023 passed by the learned Special Judge, NDPS Act
Cases, Nohar, District Hanumangarh in Sessions Case No.46/2022
(CIS No.46/2022), whereby appellant Naresh Kumar was
convicted for the offence under Section 8/22 of the NDPS Act and
appellant Umesh Sharma was convicted for the offence under
Section 8/22 read with Section 29 of the NDPS Act and each of
them was sentenced to undergo rigorous imprisonment of 14
years alongwith a fine of Rs.2,00,000/- with default sentence.
2. Learned counsel for the appellant-applicants submit that the
appellants have a strong arguable case in their favour. The
mandatory provisions of NDPS Act, more particularly Section 42 of
the Act, have not been complied with in the case at hand. It is
contended 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 hearing of the appeal is likely to take long
time, therefore, the application for suspension of sentence may be
allowed.
3. Per contra, learned Public Prosecutor has vehemently
opposed the prayer made by learned counsel for the accused-
applicants for releasing the appellants on bail.
4. I have heard learned counsel for the parties and gone
through the record of the case.
[2025:RJ-JD:18339] (3 of 5) [SOSA-1035/2024]
5. The appellants were tried and convicted for committing
offence under Section 8/22 of the NDPS Act vide the judgment
under assail dated 29.11.2023. They were directed to be
imprisoned for a period of 14 years. The appeal has been
admitted before this court for the purpose of making further
appreciation of evidence.
6. The first and foremost plea raised by the learned counsel for
the petitioner seems to be worth consideration, which is about
total non-compliance of Section 42 of the NDPS Act and for that
purpose, the arguments have been raised that the seizure has
been made by an unauthorized person. He drew the attention of
this court towards the statement of Manguram (P.W.1), Sub-
Inspector of Police, who effected search, seizure and arrest of the
accused. Though he portrayed himself as a person having charge
of the police station at the relevant point of time when the seizure
was made, but surprisingly, when he was subjected to cross-
examination, he in unequivocal and unambiguous term has
admitted that on 25.05.2022, one Mr. Ravindra Naruka was posted
as SHO, Police Station Nohar, but he had gone out of the
premises, however, nothing has been produced to show that the
charge of the police station had been handed over to the Sub-
Inspect Manguram (P.W.1). He candidly made admission of having
no document on record or copy of the Roznamcha diary showing
the fact of delivering of charge to him before proceeding in the
matter of effecting search and seizure. It is noteworthy that
[2025:RJ-JD:18339] (4 of 5) [SOSA-1035/2024]
Section 42 of the NDPS Act is a mandatory provision and non-
compliance of which vitiates the recovery and even conviction.
7. Section 42 of the NDPS Act read with the Standing Order
No.1/1986 issued by the Government of India makes it abundantly
clear that only those Sub-Inspectors, who are posted as SHO of a
particular police station are authorized to effect search and
seizure. A plain reading of the S.O. No.1/1986 manifests that
every Sub-Inspector of police is not authorized to effect search
and seizure under the NDPS Act. If it has happened, then
recovery in this case had been made by an unauthorized officer
and doing so the entire proceeding has been vitiated. My opinion
is based upon the celebrated judgment of Hon'ble Supreme Court
in the case of Roy V.D. Vs. State of Kerala reported in AIR
2001 SC 137.
8. Since a question of law has emerged, which if finally decided
in favour of the appellants, then they would get acquittal and the
conviction would be vitiated on this count alone, therefore, this
court does not wish to continue further incarceration of the
appellants till disposal of the appeal. Early hearing of the appeal
is not a seeming fate.
9. 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 trial court (details of which are
provided in para 1 of this order) against the appellant-applicants
[2025:RJ-JD:18339] (5 of 5) [SOSA-1035/2024]
named above, shall remain suspended till final disposal of the
aforesaid appeals and each of them 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 12.05.2025
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.
3. Similarly, if the sureties change their address(s), they
will give in writing their changed address to the trial
Court.
10. The learned trial Court shall keep the record of attendance of
the accused-applicants in a separate file. Such file be registered as
Criminal Misc. Case related to original case in which the accused-
applicants were tried and convicted. A copy of this order shall also
be placed in that file for ready reference. Criminal Misc. file shall
not be taken into account for statistical purpose relating to
pendency and disposal of cases in the trial court. In case the said
accused applicant do not appear before the trial court, the learned
trial Judge shall report the matter to the High Court for
cancellation of bail.
(FARJAND ALI),J
101-Pramod/-
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