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2021 DIGILAW 1047 (RAJ)

Sashi v. Union of India

2021-07-07

SANDEEP MEHTA

body2021
ORDER : Sandeep Mehta, J. 1. The instant application for suspension of sentence under Section 389 Cr.P.C. has been preferred on behalf of the appellant-applicant Sashi S/o Sh. Nikku Ram, who has been convicted and sentenced for the offence under Section 8/18 of the NDPS Act vide the judgment dated 27.01.2020 passed by the learned Special Judge, NDPS Act Cases, Deedwana, District Nagaur in Sessions Case No. 28/2016 (1/2016). 2. Heard learned counsel for the parties and perused the material available on record. 3. The appellant is in custody in this case since 25.06.2015. The recovery of contraband was made by the team of CBN from a Tavera vehicle (No. PB-29-G-7660) being driven by the appellant herein. It is alleged that 30 packets of suspected opium weighing about 500 gms each were found concealed in a secret chamber constructed in the vehicle. However, while drawing the samples, Seizure Officer created 3 batches of 10 packets each and then drew 6 mixed samples from these three batches. The contention of learned counsel Shri Charan is that this procedure of sampling as adopted by the Seizure Officer is totally illegal and even if it is presumed that analysis of samples by the FSL gave positive test for presence of opium, at best, it can be held that the recovered contraband weighed 1 Kg 470 gms. which is less than commercial quantity. He thus submits that the appellant has available to him strong grounds for assailing the impugned judgment. He has been in custody for more than half of the sentences awarded to him. He is ready and willing to deposit the amount of fine. Learned counsel Shri Charan submits that to his information, the appellant has no previous criminal antecedents. On these grounds, Shri Charan craves indulgence of bail for the appellant during the pendency of the appeal. 4. Learned Special Public Prosecutor, vehemently and fervently opposed the submissions advanced by learned counsel representing the appellant. However, he too does not dispute the fact that there is an apparent flaw in the manner, in which, the sampling procedure was undertaken by the Seizure Officer. However, any comment at the stage on the veracity of the sampling procedure, may prejudice the outcome of the appeal but for the present, I am of the view that the appellant has available to him strong grounds for assailing the impugned judgment. However, any comment at the stage on the veracity of the sampling procedure, may prejudice the outcome of the appeal but for the present, I am of the view that the appellant has available to him strong grounds for assailing the impugned judgment. He has been in custody for the last nearly 6 years. Conditions of Section 32 A r.w. Section 37 of the NDPS Act are duly satisfied. 5. In this background and having regard to the entirety of the facts and circumstances of the case, this court is of the view that it is a fit case for grant of indulgence of bail to the appellant-applicant by suspending the sentences awarded to him by the trial court during the pendency of the appeal. 6. Accordingly, the application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Special Judge, NDPS Act Cases, Deedwana, District Nagaur vide judgment dated 27.01.2020 in Sessions Case No. 28/2016 (1/2016) against the appellant-applicant Sashi S/o Sh. Nikku Ram shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail, provided he deposits the total fine amount as was ordered by learned trial court while convicting him and executes a personal bond in the sum of Rs. 2,00,000/- with two sureties of Rs. 1,00,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 09.08.2021 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- 1. That he will appear before the trial Court in the month of January of 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. 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. 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.