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2018 DIGILAW 2229 (RAJ)

Kailash v. State, Through PP

2018-11-29

P.K.LOHRA

body2018
ORDER : 1. Appellant-applicant has preferred this second application under Section 389 Cr.P.C. for seeking suspension of sentence awarded by Special Judge, NDPS Cases, Pratapgarh (for short, 'learned trial Court') by its judgment dated 21.12.2017. The learned trial Court, while indicting the appellant-applicant for offence under Section 8 read with Section 21 of the NDPS Act, has handed down sentence of 15 years' rigorous imprisonment with fine of Rs. 1,50,000/-, and in default of payment of fine to undergo sentence of 2 years' rigorous imprisonment. 2. First application for suspension of sentence of appellant-applicant was dismissed as not pressed on 02.02.2018. 3. Arguing on this second application for suspension of sentence, precisely, learned counsel for the appellant-applicant has urged that during trial he was in custody and by this time he has already undergone sentence for more than 5 years. Learned counsel has prayed for accepting the application on account of prolonged custody and the fact that final hearing of the appeal is not offing in near future. It is also submitted by learned counsel that upon information received by the concerned SHO under, Section 42 of the NDPS Act, about the fact that appellant-applicant was carrying contraband brown sugar, the Seizure Officer reached at the spot and served a notice under Section 50 of the NDPS Act with clear recitals of his personal search. It is also argued by learned counsel that although appellant was subjected to personal search but per se the notice is laconic inasmuch as in the notice 3rd option of the seizure himself was incorporated. In support thereof, learned counsel has placed reliance on notice (Exh.P/5) and seizure memo (Exh.P/8). By relying on these documents, learned counsel has submitted that it is a clear case of flagrant violation of Section 50 of the NDPS Act. It is also submitted by learned counsel that sentence of co-accuse Kavita has already been suspended. Learned counsel has further submitted that there is no other criminal antecedents of the appellant besides his involvement in the instant matter, and therefore, the factum of prolonged custody deserves due credence for favourable consideration of the application for suspension of sentence. 4. Per contra, learned Public Prosecutor has opposed the application for suspension of sentence. It is argued by learned Public Prosecutor that recovery was from a bag and not from the person of appellant-applicant. 4. Per contra, learned Public Prosecutor has opposed the application for suspension of sentence. It is argued by learned Public Prosecutor that recovery was from a bag and not from the person of appellant-applicant. Learned Public Prosecutor has also submitted that in the backdrop of recovery of contraband, which is above commercial quantity, Section 37 is attracted. 5. I have bestowed my consideration to the arguments advanced at Bar. 6. While it is true that it was a case of recovery of contraband, which is above commercial quantity, but, the issue relating to validity of Section 50 of the NDPS Act was not properly addressed by the learned trial Court. Besides that, the prolonged custody of appellant-applicant, which is above 5 years, too cannot loose sight of the Court, more particularly, in the wake of fact that final hearing of the appeal appears to be not possible in near future. 7. In view thereof, while refraining to make any comment on merits of the case, I feel persuaded to accept this second application for suspension of sentence filed under Section 389 Cr.P.C. and it is ordered that the sentence passed by Special Judge, NDPS Cases, Pratapgarh, vide judgment dated 21.12.2017, in Sessions Case No.58/2013 against appellant-applicant Kailash S/o Ratanlal Dhobi, shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail subject to the condition that he deposits 50% of the fine amount imposed by learned trial Court within four weeks from today and executes a personal bond in a sum of Rs. 1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of learned trial Judge for his appearance in this Court on 02.01.2019 and whenever ordered to do so till disposal of the appeal, on the following other conditions:- 1. That he will appear before the trial Court in the month of January 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. 8. The learned trial Court shall keep the record of attendance of accused-applicant in a separate file. Such file be registered as Criminal Misc. 3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court. 8. The learned trial Court shall keep the record of attendance of 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 purposes 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.