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2024 DIGILAW 659 (RAJ)

Jay Prakash v. State of Rajasthan

2024-04-23

FARJAND ALI

body2024
ORDER : Farjand Ali, J. The instant second application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 16.11.2022 passed by the learned Special Judge, NDPS Cases, Pratapgarh in Sessions Case No.01/2019 whereby he was convicted under Section 8/15 of the NDPS Act and sentenced to suffer 20 years rigorous imprisonment along with a fine of Rs. 2,00,000/- and in default to further undergo two years' rigorous imprisonment. His first application for suspension of sentence was dismissed as not pressed by this Court vide order dated 13.04.2023 passed in S.B. Criminal Misc. Suspension of Sentence Application No.1227/2022 but a liberty was granted to him to renew the prayer if the appeal is not heard within a reasonable period. Hence, the instant application for suspension of sentence. 2. It is contended on behalf of the applicant that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and thus, reached at an erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this court being the first appellate Court. He submitted that the Seizing Officer collected the samples from the spot and sent to the FSL for its examination thus, Section 52A of the NDPS Act has not been complied with. He placed reliance on the Petition(s) for Special Leave to Appeal (Crl.) No(s) 2893/21 titled Manohar Lal Ainani v. State of Rajasthan & Anr., wherein it was held vide order dated 15.11.2021 that looking to the prolonged custody period of the petitioner, bail shall be granted to him in that matter. In another landmark judgment of Satender Kumar Antil v. Central Bureau of Investigation and Ors. reported in AIR 2022 SC 3386 , the aforesaid aspect has been reiterated. Hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted. 3. Per contra, learned public prosecutor has vehemently opposed the prayer made on behalf of the accused-applicant for releasing the appellant on application for suspension of sentence. 4. Heard learned counsel for the parties and perused the material available on record. 5. 3. Per contra, learned public prosecutor has vehemently opposed the prayer made on behalf of the accused-applicant for releasing the appellant on application for suspension of sentence. 4. Heard learned counsel for the parties and perused the material available on record. 5. It is emanating from the record that the applicant is in custody in this case since 02.08.2018 for the accusation that he was sitting in a truck along with driver Daya Ram and upon making search, 21 bags containing poppy husk were recovered. The samples were taken from each bag and marked as 'A-1' to 'U-1'. After seizure, the accused were arrested, charge sheeted, tried and then convicted for the offence under Section 8/15 of the NDPS Act and sentenced to suffer 20 years imprisonment. 6. The defence plea that the Seizing Officer, Sub-Inspector Onkar Singh was not competent to make search and seizure of the contraband has worth. The discrepancies in the weight of contraband in different bags is another issue, which may be detrimental to the interest of the prosecution. The samples were sent to the FSL after 18 days of its collection which is against the mandate of law. Admittedly, neither inventory has been prepared nor samples were taken in the presence of a Magistrate. It is an admitted fact situation that the samples were collected by the Sub Inspector Onkar Singh at the spot, marked as 'A-1' to 'U-1' and sent the same to the FSL for chemical examination. No samples were taken in the presence of Magistrate for sending the same to the FSL. As per Section 52A of the NDPS Act, and Standing Order No.1/89, issued by the Government, it was imperative upon the police officer to prepare an inventory and take samples in the presence of a Magistrate so as to sanctify the process of seizure and presence of contraband in possession of the accused. Having not done so, the Investigating Agency has committed a grave error and as such, the FSL report would not help the case of the prosecution. Besides the above, the appeal has been admitted by this Court on 08.12.2022 for the purpose of making a further appreciation of evidence. Having not done so, the Investigating Agency has committed a grave error and as such, the FSL report would not help the case of the prosecution. Besides the above, the appeal has been admitted by this Court on 08.12.2022 for the purpose of making a further appreciation of evidence. Being the first appellate Court, this Court is supposed to scrutinize the material brought on record again so as to verify the finding of guilt but owing to the pendency of the appeals, there seems no hope of hearing the appeal in a near future. 7. In the given circumstances and in view of the fact that mandate of law provided Section 52-A has not been complied with, the Court should lean towards leniency in granting bail. Hon'ble the Supreme Court has propounded guidelines on the subject of bail in the case of Satender Kumar Antil (supra) and has held as under:- "41. Sub-section (2) has to be read along with Sub-section (1). The proviso to Sub-section (2) restricts the period of remand to a maximum of 15 days at a time. The second proviso prohibits an adjournment when the witnesses are in attendance except for special reasons, which are to be recorded. Certain reasons for seeking adjournment are held to be permissible. One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so notwithstanding the beneficial provision Under Section 436A of the Code which stands on a different footing. 42. ...... 43. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available Under Section 436A would also be considered, the Courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant. 44. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant. 44. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred Under Section 436A of the Code among other factors ought to be considered for a favourable release on bail." (Emphasis Supplied) If the pleas raised by the defence which have substance, are finally decided in favour of the accused and against the prosecution then certainly the appellant may be acquitted from the charge and in that situation it would not be possible for this Court to return back him the days of long eight years, which he spent behind the bars. 8. In another judgment titled as Mohammed Khalid and another v. The State of Telangana passed by Hon'ble the Supreme Court in Criminal Appeal No(S). 1610 of 2023 dated 01.03.2024, wherein it was held that since no proceedings were undertaken for preparing of inventory and drawings of samples as per Section 52A of NDPS Act, thus, the FSL was considered to be a waste and was not considered worthy of being read in evidence on the basis of this inter alia other aspects, Hon'ble the Apex Court acquitted the appellants of all charges. The relevant paragraph of the above judgment is reproduced as under:- "22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P11) is nothing but a waste paper and cannot be read in evidence." 9. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P11) is nothing but a waste paper and cannot be read in evidence." 9. Considering the overall facts and circumstances of the case and looking to the fact that as some of the questions raised by the learned counsel for the appellant deserves to be appreciated again and if the same will be decided in his favour, he may get acquittal; he has served more than 8 years and looking to voluminous pendency of the cases, there is no likelihood of hearing of the appeal on merits in near future, thus, while refraining from passing any comments on the niceties of the matter and the defects of the prosecution as the same may put an adverse effect on hearing of the appeal, this court is of the opinion that it is a fit case for suspending the sentence awarded to the accused appellant. 10. Accordingly, the second application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the impugned order of sentence dated 16.11.2022 passed by learned Special Judge, NDPS Act Cases Pratapgarh in Sessions Case No.01/2019 against the appellant-applicant Jay Prakash S/o Badarram shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail provided he executes a personal bond in the sum of Rs. 50,000/-with two sureties of Rs. 25,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 27.05.2024 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 addresses, they will give in writing their changed address to the trial Court. 11. 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. (3) Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court. 11. 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.