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2019 DIGILAW 419 (RAJ)

Ratan Lal v. State of Rajasthan, Through PP

2019-02-05

P.K. LOHRA

body2019
JUDGMENT 1. Appellant-applicant has preferred this second application under Section 389 Cr.P.C. seeking suspension of sentence handed down by the Special Judge, NDPS Cases No. 1, Chittorgarh (for short, learned trial Court) in Sessions Case No. 7/2008. Learned trial Court by the impugned judgment indicted the appellant for offence under Section 8 read with Section 15(c) of the NDPS Act and awarded sentence of ten years rigorous imprisonment with fine of Rs. 1 lakh. In default of payment of fine to undergo sentence of two years rigorous imprisonment. 2. Instant appeal is pending since 2017. First application for suspension of sentence laid on behalf of appellant was nixed by this Court on 20th of April 2018 as not pressed. 3. Pressing this second application for suspension of sentence, learned counsel for the appellant has essentially harped on prolonged custody of the appellant as according to him, appellant has served sentence of more than four years out of total sentence of ten years rigorous imprisonment. It is also urged by learned counsel that Seizure Officer, while drawing samples of the contraband (poppy straw), has resorted to an absolutely laconic method inasmuch as the entire bulk of contraband weighing 194 Kg stuffed in eight sacs and one plastic bag was mixed and then from that mixture of entire bulk, two samples of 1 Kg were drawn. It is also argued by learned counsel that the method of drawing samples has substantially reduced the chances of appellants conviction under Section 8 read with Section 15(c) of the NDPS Act but that aspect is completely overlooked by learned trial Court while passing the impugned judgment. In support of his contention, learned counsel has placed reliance on Netram v. State of Rajasthan [ 2014 (2) WLN 394 (Raj.) . It is also submitted by learned counsel that in view of serious lacuna in drawal of samples, it is a fit case wherein Court can very well record its satisfaction about requirement of Section 37(1)(b)(ii) of the NDPS Act at this stage because sustainability of appellants conviction for offence under Section 8 read with Section 15(c) per se appears under serious cloud. Learned counsel would urge that there is no minimum sentence prescribed for offence under Section 8 read with Section 15(b) under the NDPS Act. 4. Per contra, learned Public Prosecutor has vehemently opposed the application for suspension of sentence. Learned counsel would urge that there is no minimum sentence prescribed for offence under Section 8 read with Section 15(b) under the NDPS Act. 4. Per contra, learned Public Prosecutor has vehemently opposed the application for suspension of sentence. It is argued by learned Public Prosecutor that recovery of contraband is undeniably higher than commercial quantity, and therefore, rigor of Section 37 of the NDPS Act is clearly attracted in the instant case. In the alternative, it is argued by learned Public Prosecutor that if the Court finds favour with the plea of learned counsel for the appellant then at least the appellant may be asked to deposit the fine amount imposed by learned trial Court. 5. I have bestowed my consideration to the arguments advanced at Bar and also taken note of ratio decidendi of Netrams case (supra). 6. Having regard to the facts and circumstances of the case and prima facie considering the lacuna in drawal of sample coupled with the fact that appellant has served sentence for more than four years, I feel inclined to grant some reprive to him in the matter of suspension of sentence subject to certain conditions. 7. Accordingly, the second application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentence passed by learned Special Judge, NDPS Cases No. 1, Chittorgarh, vide judgment dated 04.04.2017, in Sessions Case No. 7/2008, against appellant-applicant, Ratan Lal S/o Shri Parthu, shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail subject to the condition that he deposits fine amount imposed by learned trial Court within four weeks from today and upon furnishing a personal bond in the sum of Rs. 1,00,000/- with two sureties of Rs. 50,000/- each to the satisfaction of the learned trial Judge for his appearance in this Court on 05.03.2019 and whenever ordered to do so till disposal of the appeal, on the conditions indicated below:- 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. 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. 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.