Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 2012 (RAJ)

Venkateshwar Rao v. N. C. B. , Jodhpur, Jodhpur

2022-07-13

DINESH MEHTA

body2022
JUDGMENT : 1. The present application for suspension of sentences under Section 389 of the Code of Criminal Procedure has been preferred on behalf of the petitioner - Venkateshwar Rao who has been convicted and sentenced for 10 years imprisonment vide judgment and order dated 04.05.2019 passed by the learned Special Judge, NDPS Act Cases, Dungarpur in Sessions Case No.02/2015(CIS No.02/2015) for the offences punishable under Sections 8/20, 8/25, 8/29 of the NDPS Act. 2. While arguing the application for suspension of sentence, learned counsel for the petitioner submitted that there was a violation of mandatory provisions of Section 57 of the NDPS Act and the Investigating Officer had not reported about seizure and arrest within 48 hours and thus, entire proceedings are vitiated. In support of his contention aforesaid, learned counsel for the petitioner relied upon the judgments of Hon'ble the Supreme Court rendered in the case of Mohinder Kumar v. The State, Panji, Goa reported in AIR 1995 SC 1157 ; and in the case of Sukhdev Singh v. State of Haryana reported in AIR 2013 SC 953 . 3. It was also argued that the Investigating Officer has not taken samples at the time of recovery and the same were taken at the Police Station, which is contrary to the mandate and circular issued by the Central Government. 4. He further submitted that co-accused persons namely, Dinesh and Mukund who have been convicted along with the petitioner have been enlarged on bail by the Co-ordinate Bench of this Court vide orders dated 17.01.2022 and 02.02.2022, respectively. 5. Mr. Pareek, learned Special Public Prosecutor submitted that all three of petitioner's argument that petitioner is entitled for suspension of sentence are not tenable. 6. Learned Special Public Prosecutor invited Court's attention towards the fact that when the petitioner was intercepted/apprehended with 915 kgs. Ganja, many persons came to the site and manhandled the officer of the Narcotic Control Bureau and created ruckus due to which, the authorities had to take the petitioner and the contraband with the vehicle to nearest Police Station for the purpose of completion of proceedings of seizure. 7. He argued that seizure at the Police Station by itself is not sufficient to be fatal to the proceedings and in appropriate case it can be done. 7. He argued that seizure at the Police Station by itself is not sufficient to be fatal to the proceedings and in appropriate case it can be done. In support of his argument, he relied upon judgment rendered by Hon'ble the Supreme Court in the case of Khet Singh v. Union of India reported in (2002) 4 SCC 380 . 8. It was also argued that in such situation it was neither possible for the Narcotic Control Bureau to get independent witness nor was it possible to take sample and prepare a seizure memo on the spot. In support of his arguments learned Special Public Prosecutor cited the following judgments rendered by Hon'ble the Supreme Court: (a) Ajmer Singh v. State of Haryana, reported in 2010 (3) SCC 746 ; (b) Ravindran @ John v. The Superintendent of Customs, reported in (2007) 6 SCC 710; (c) G. Srinivas Goud v. State of A.P., reported in (2005) 8 SCC 183 ; (d) Durand Didier v. Chief Secretary, Union Territory, reported in (1990) 1 SCC 95 ; (e) State of Haryana v. Mai Ram son of Mam Chand, reported in (2008) 8 SCC 292 ; & (f) Jarnail Singh v. State of Punjab, reported in (2011) 1 SCC (Cri.)1191. 9. Heard learned counsel for the parties. 10. So far as petitioner's contentions that the samples were not taken at the spot and that the seizure was not done in presence of independent witnesses and that the witnesses were resident of some other place are concerned, in the factual backdrop of this case when the situation became so tensed that an FIR came to be lodged by the respondent, the only course left with the Bureau was to go to nearest Police Station. Such plea cannot be a ground to allow petitioner's application of suspension of sentence. There were reasonable grounds for not taking samples and preparing seizure memo on the spot. 11. However, considering that petitioner has already served 7 years 6 months sentence out of total sentence of 10 years awarded to him and because two co-accused persons have already been enlarged on bail, this Court deems it appropriate to accept petitioner's application for suspension of sentence. 10. 11. However, considering that petitioner has already served 7 years 6 months sentence out of total sentence of 10 years awarded to him and because two co-accused persons have already been enlarged on bail, this Court deems it appropriate to accept petitioner's application for suspension of sentence. 10. Accordingly, the application for suspension of sentence filed by the petitioner is allowed and it is ordered that the sentence passed by the learned Court below in Sessions Case No.02/2015 (CIS No.02/2015) against the petitioner Venkateshwar Rao S/o Sh. Jagga Rao shall remain suspended till final disposal of the present appeal provided he executes a personal bond in the sum of Rs.1,00,000 along with two sound and solvent sureties to the tune of Rs.50,000/- each to the satisfaction of the trial Court for his appearance in this Court on 06.09.2022 and whenever ordered to do so, till the disposal of the appeal on the conditions indicated below:- (i). That he will appear before the trial Court in the month of January of every year till the appeal is decided. (ii). That if the petitioner 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. (iii). Similarly, if the sureties change their address, they will give in writing their changed address to the trial Court. The learned trial Court shall keep the record of attendance of the accused-petitioner in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused- petitioner 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 petitioner does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.