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2019 DIGILAW 1455 (RAJ)

Raspal Singh @ Pali v. State of Rajasthan

2019-05-10

P.K. LOHRA

body2019
JUDGMENT 1. It is submitted by learned Public Prosecutor that State does not want to file reply to the application for suspension of sentence. 2. Heard. 3. Applicant-appellant has preferred this second application for suspension of sentence seeking suspension of sentence awarded by Special Judge, NDPS Cases No. 2, Chittorgarh (for short, learned trial Court) vide its judgment and award dated 6th of March, 2018. The learned trial Court, by the impugned judgment, convicted the applicant-appellant for offence under Section 8 read with Section 18 as well as Section 8 read with Section 25 of the NDPS Act and handed down sentence of ten years rigorous imprisonment with fine of Rs. 1 lakh for each offence and, in default of payment of fine to further undergo sentence for one years rigorous imprisonment. 4. First application for suspension of sentence under Section 389 Cr.P.C. was dismissed as not pressed on 5th of July 2018 with liberty to renew prayer after six months. 5. Arguing on the second application for suspension of sentence, it is contended by learned counsel, Mr. Gill that after his arrest on 13th of August, 2012, applicant was released on bail by this Court during trial on 27th of April, 2013. It is argued by learned counsel that during search and seizure only 1 Kg of opium was recovered from conscious possession of the applicant and same is also evident from recovery memo inasmuch as two separate recovery memos were prepared qua applicant and other co-accused showing recovery of opium weighing 1 Kg and 2 Kgs respectively. Learned counsel submits that the learned trial Court has not considered separate recovery memo qua applicant, while convicting him for offence under Section 8 read with Section 18(b) of the NDPS Act. Learned counsel has further urged that besides conviction of the applicant in instant matter, there is no other criminal case registered against him for an offence under the NDPS Act. It is also contended by learned counsel that since passing of the impugned judgment, applicant is in custody and by this time, he has already remained in custody for more than eighteen months. 6. It is also submitted by Mr. It is also contended by learned counsel that since passing of the impugned judgment, applicant is in custody and by this time, he has already remained in custody for more than eighteen months. 6. It is also submitted by Mr. Gill that learned trial Court has seriously erred in adding the contraband carried by co-accused so as to indict applicant for offence under clause (b) of Section 18 of the NDPS Act inasmuch as it has failed to examine this aspect in right perspective. In support of his argument, learned counsel has placed reliance on a decision of Supreme Court in case of Amarsingh Ramjibhai Barot v. State of Gujarat [ (2005) 7 SCC 550 ] . 7. Learned counsel has argued with full vehemence that flagrant violation of mandatory provisions of Section 50 of the NDPS Act by the Seizure Officer in the instant matter has completely escaped notice of the learned trial Court, which furnishes yet another ground for favourable consideration of the application for suspension of sentence. In support thereof, learned counsel has placed reliance on a decision of Supreme Court in State of Rajasthan v. Parmanand [ (2014) 5 SCC 345 ] . 8. Learned counsel would contend that entire evidence with respect to sealing of samples, keeping them in Malkhana, sending them for FSL examination and also keeping in safe custody all the articles seized under the NDPS Act would ipso facto reveal that mandatory requirements envisaged under Section 55 of the said Act are given completely given go-bye. Elaborating his submission learned counsel contends that this vital aspect is also not appropriately examined by learned trial Court, while indicting appellant for the charged offences. 9. Per contra, learned Public Prosecutor, Mr. N.S. Bhati has vehemently opposed the application for suspension of sentence. It is argued by learned Public Prosecutor that besides conviction of applicant-appellant in the instant matter, one more criminal case is registered against him at Police Station Delo, District Ludhiana for offences under Section 419, 420, 467, 468, 471 and 120-B IPC. Learned Public Prosecutor has argued that in view of conviction of the applicant, for offence under Section 8 read with Section 18(b) of the NDPS Act, embargo for suspension of sentence envisage under Section 37 of the NDPS Act is clearly attracted. 10. Learned Public Prosecutor has argued that in view of conviction of the applicant, for offence under Section 8 read with Section 18(b) of the NDPS Act, embargo for suspension of sentence envisage under Section 37 of the NDPS Act is clearly attracted. 10. I have bestowed my consideration to the arguments advanced at Bar and perused the materials available on record. 11. Upon, prima facie, examination of the matter, in conjunction with the impugned judgment and the law cited at Bar by learned counsel for the applicant, in my considered opinion, in the peculiar facts and circumstances of the case, it would not be appropriate to apply rigor of Section 37 of the NDPS Act for declining plea of the applicant. Therefore, while refraining to make any comment on merits of the case, I feel persuaded to accept this second application for suspension of sentence conditionally. 12. Accordingly, the second application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by learned Special Judge, NDPS Cases No. 2, Chittorgarh, vide judgment dated 06.03.2018, in Sessions Case No. 83/2014, against applicant-appellant, Raspal Singh @ Pali S/o Shri S.Kuljeet Singh, 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 fine amount slapped against him by learned trial Court within four weeks from today and also furnishes a personal bond in a sum of Rs. 1,00,000/- with two sureties of like amount, including one local surety, to the satisfaction of learned trial Judge for his appearance in this Court on 12.06.2019 and whenever ordered to do so till disposal of the appeal, on the conditions indicated below:- 1. That he will appear before 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), he will give in writing their changed address to the trial Court. 13. 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), he will give in writing their changed address to the trial Court. 13. 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.