Rajasthan High Court - Jodhpur
Akbar Khan Pathan vs Uoi on 14 February, 2019
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Suspension of Sentence(Appeal) No. 752/2018
in
S.B. Criminal Appeal No.1759/2017
Akbar Khan Pathan S/o Sh. Mukram Kha Pathan, aged about 35
years, R/o Dabda, Thana Hathuniya, District Pratapgarh (Raj.).
(Presently lodged in Judicial Custody at Central Jail, Udaipur)
----Appellant
Versus
UOI through NCB
----Respondent
For Appellant(s) : Mr. M.L. Bishnoi.
For Respondent(s) : Mr. M.R. Pareek, Special PP for NCB.
HON'BLE MR. JUSTICE P.K. LOHRA
Order 14/02/2019 Accused-appellant has preferred this second application for suspension of sentence awarded by Special Judge, NDPS Cases, Pratapgarh in Sessions Case No.44/2013 while convicting him for offence punishable under Sections 8 read with Section 18, 21 and 22 as well as 25A of the NDPS Act.
Learned trial Court by the impugned judgment, while convicting appellant for aforesaid offences, has awarded maximum sentence of 15 years' imprisonment with fine of Rs.1,50,000/- for offence punishable under Section 8 read with Section 21 of the NDPS Act and in default of payment of fine to undergo one year's rigorous imprisonment. Likewise, for offence under Section 8 read with Section 22 of the NDPS Act, the appellant is awarded sentence of 12 years' rigorous imprisonment with fine of (2 of 3) [SOSA-752/2018] Rs.1,20,000/- and in default of fine to undergo sentence of one year's rigorous imprisonment. In relation to offence under Sections 8/18 and 25A of the NDPS Act, the appellant is separately sentenced for five years' rigorous imprisonment and all the sentences are ordered to run concurrently.
First application of appellant for suspension of sentence was dismissed as not pressed on 21st of February, 2018.
Arguing on the second application for suspension of sentence, it is submitted by learned counsel that during trial and after his conviction, appellant has remained in custody for about six years and final hearing of appeal is likely to take considerable time, therefore, solely on the ground of prolonged custody, the sentence of the appellant may be suspended. It is also argued by learned counsel that from his conscious possession only commercial quantity of contraband (heroine) was recovered and the commercial quantity of amphetamine and methanol-acetic-n- hydride was recovered from premises not owned by him. Learned counsel has also argued that the premises from where amphetamine and methanol-acetic-n-hydride were recovered belongs to Ajij Khan but he has not been prosecuted in the matter. Learned counsel further submits that there is no other criminal antecedent of the appellant.
Per contra, learned Public Prosecutor has vehemently opposed the application. It is submitted by learned Public Prosecutor that recovery of contraband heroine from conscious possession of appellant being more than commercial quantity, has obviously entailed rejection of his prayer inasmuch as rigor of Section 37 of the NDPS Act is clearly attracted.
(3 of 3) [SOSA-752/2018]
I have bestowed my consideration to the arguments
advanced at Bar.
Having regard to the facts and circumstances of the case and considering the recovery of heroine, which was more than commercial quantity, I feel disinclined to grant any indulgence to the appellant.
Consequently, the application is rejected.
(P.K. LOHRA),J 80-a.asopa/-
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