Rajasthan High Court - Jodhpur
Shareef Shaikh vs State Of Rajasthan (2025:Rj-Jd:24707) on 20 May, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:24707]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 722/2025
In
S.B. Criminal Appeal No.788/2025
Rajikul Shaikh S/o Shaitab Shaikh, Aged About 35 Years, R/o
South Diyaan Tola, Sultanganj, P.s. Kaliyachak, Dist. Malda, West
Bangal (At Present Lodged In Central Jail, Jodhpur)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 784/2025
In
S.B. Criminal Appeal No.851/2025
Shareef Shaikh S/o Shri Altaf Shaikh, Aged About 32 Years,
Dakshin Diyan Tola, Sultanganj, Police Station Kaliyachak,
District Malad, Pachim Bangal (Lodged In Central Jail Jodhpur)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. B.R. Godara
Mr. B.S. Rathore
For Respondent(s) : Mr. S.S. Rathore, Dy.G.A.
HON'BLE MR. JUSTICE FARJAND ALI
Order
20/05/2025
1. The instant applications for suspension of sentence have
been moved on behalf of the applicants in the matter of judgment
[2025:RJ-JD:24707] (2 of 4) [SOSA-722/2025]
dated 16.04.2025 passed by the learned Special Judge, NDPS Act
Cases No.2, Jodhpur in Sessions Case No.121/2023 whereby the
applicants were convicted and sentenced and sentenced as
under:-
Name of Offence for which Sentence, fine and
the accused convicted default sentence
Rajkul Section 8/18 of the NDPS 12 year's RI along with fine of
Shaikh Act Rs.1,00,000/- and in default to
further undergo one year's RI
Shareef
Shaikh
All the sentences were ordered to run concurrently.
2. It is contended by the learned counsel for the appellants 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;
hearing of the appeals is likely to take long time, therefore, the
applications 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 appellant on applications for
suspension of sentence.
4. I have heard the counsel of the parties and gone through the
record of the case. The basic concept for holding a person guilty of
possessing contraband rests on the exclusivity and consciousness
of possession of the accused. A conviction can be maintained only
when the prosecution succeeds in producing reliable, cogent, and
unimpeachable evidence to establish that, at the time of
[2025:RJ-JD:24707] (3 of 4) [SOSA-722/2025]
apprehension, the accused had exclusive and conscious possession
of the contraband.
In the present case, the sustainability of the conviction has been
challenged primarily on the ground that the prosecution witnesses
have utterly failed to establish the above fact against the
petitioner. The attention of this Court has been drawn to the
admission made by PW-2 Munna Ram on page 4 during cross-
examination by the defense, which seriously questions this aspect.
This witness was instrumental in the seizing of the bag allegedly
containing opium. However, according to him, the bag was lying
unattended and was taken by the witness Munna Ram and his
arrest Ranjeet Singh thereafter handed over to the SHO.
Subsequently, a formal search and seizure procedure was carried
out. The utter noncompliance with mandatory provisions is writ
large. However, this Court is not giving any definite opinion in this
regard at this stage, since the appeal is yet to be heard on merits.
It is the duty of the Court of appeal to put an eagle's eye again on
the material brought on record based on which the conclusion of
the guilt reached by the learned trial Court.
5. Considering the overall facts and circumstances of the case and
the looking to the totality of the facts and circumstances of the
case and not likelihood of hearing of appeals in near future, the
applications for suspension of sentence are accepted.
6. Accordingly, the applications for suspension of sentence filed
under Section 389 Cr.P.C. are allowed and it is ordered that the
sentence passed by learned trial Court, the details of which are
[2025:RJ-JD:24707] (4 of 4) [SOSA-722/2025]
provided in the first para of this order, against the appellant-
applicants named above shall remain suspended till final disposal
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 his appearance in this court on 23.06.2025
and whenever ordered to do so till the disposal of the appeal 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 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.
7. The learned trial Court shall keep the record of attendance of
the accused-applicant in a separate file. Such file be registered as
Criminal Misc. Case related to original case in which the accused-
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.
(FARJAND ALI),J
104-Mamta/-
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