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Rajasthan High Court - Jodhpur
Habib vs State Of Rajasthan on 19 December, 2025
[2025:RJ-JD:54436]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 1668/2025
Habib S/o Mohammad Hafiz Ajmeri, Aged About 42 Years,
Maliyakrdi, Police Station Yd Nagar, District Mandsaur, ( M.P.)
----Petitioner
Versus
State Of Rajasthan, PP
----Respondent
For Petitioner(s) : Mr. B.S. Rathore
For Respondent(s) : Mr. Sriram Choudhary, PP
HON'BLE MR. JUSTICE SUNIL BENIWAL
Order
Concluded and
Reserved on : 10/12/2025
Pronounced on : 19/12/2025
1. The instant application for suspension of sentence has been
moved on behalf of the applicant-appellant against the judgment
and order dated 26.08.2025 passed by the learned Special Judge,
NDPS Cases, No.1, Chittorgarh in Sessions Case No.113/2011
whereby he was convicted for the offence under Section 8/18 of
NDPS Act and was sentenced to undergo imprisonment of six
years' R.I. together with a fine of Rs.60,000/-, in default whereof
to further undergo one year's R.I.
2. It is contended on behalf of the applicant-appellant that the
learned trial Court 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.
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3. Learned counsel for the appellant-applicant submitted that
the contraband recovered is weighing 2 Kg. of opium, which is
below commercial quantity. He also submitted that the appellant-
applicant was on bail during trial and he never misused the liberty
so granted. He submitted that seizure in the like cases can be
effected by S.H.O. of the concerned police station and in the case
at hands, the seizure was made by an officer, who was not having
authorization as he was not posted as SHO, which vitiates the trial
itself. On the basis of these submissions, learned counsel
submitted that the appellant-applicant deserves to be enlarged on
bail by suspending the sentence awarded to him.
4. Per contra, learned Public Prosecutor has vehemently
opposed the prayer made on behalf of the accused-applicant for
suspension of sentence. He submitted that the commercial
quantity in the present case is 2.5 Kg. and the contraband
recovered is weighing 2 Kg., which is marginally below the
commercial quantity. So far as the seizure is concerned, the officer
who seized the contraband, was authorized by the SHO and
procedure for seizure of the contraband was followed as
prescribed under the law. Thus, the trial cannot be said to be
vitiated on this count. It is therefore, prayed that the application
seeking suspension of sentence be dismissed.
5. Heard learned counsel for the parties and perused the
material available on record.
6. Considering the rival submissions of learned counsel for both
the parties and looking to the totality of facts and circumstances
of the case, more particularly the facts that the contraband
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recovered is of below commercial quantity; the appellant-applicant
was on bail during trial; and the hearing of appeal is likely to take
long time and also 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 the appeal, this court is of the opinion
that it is a fit case for suspending the sentence awarded to the
appellant-applicant.
7. Accordingly, the application for suspension of sentence filed
under Section 430 BNSS (old section 389 Cr.P.C.) is allowed and it
is ordered that the sentence passed by the learned learned trial
Court against the appellant-applicant- Habib S/o Mohammad
Hafiz Ajmeri 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.1,00,000/-with two
sureties of Rs.50,000/- each (one of he sureties of territorial
jurisdiction of the trial court) to the satisfaction of the learned trial
Judge for his appearance in this court on 20.01.2026 and
whenever ordered to do so till the disposal of the appeal on the
conditions indicated below:-
(i). That he will appear before the trial Court in the month
of January of every year till the appeal is decided.
(ii). That if the applicant-appellant 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.
(iii). Similarly, if the sureties change their addresses, they
will give in writing their changed address to the trial
Court.
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8. The learned trial Court shall keep the record of attendance of
the appellant-applicant in a separate file. Such file be registered
as Criminal Misc. Case related to original case in which the
appellant-applicant was 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 does not appear before the trial court, the
learned trial Judge shall report the matter to the High Court for
cancellation of bail.
(SUNIL BENIWAL),J
-skm/-
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