Rajasthan High Court - Jodhpur
Ram Kumar @ Rakesh Kumar vs State Of Rajasthan (2023/Rjjd/011535) on 20 April, 2023
Author: Farjand Ali
Bench: Farjand Ali
[2023/RJJD/011535]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 1226/2022
IN
S.B. Criminal Appeal No. 613/2021
Kashmir Singh S/o S. Mukhtiar Singh, Aged About 56 Years, B/c
Majbisikh, R/o H.no. 92, Bhati Colony, Killawali Ps Lambi Dist.
Mukatsar (Punjab). (At Present Lodged In Central Jail, Sri
Ganganagar).
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 359/2022
IN
S.B. Criminal Appeal No. 773/2021
Ram Kumar @ Rakesh Kumar S/o Sh. Mohan Lal, Aged About 23
Years, B/c Kumhar, R/o Deshu Jodha Ps Sadar Dabwali Dist.
Sirsa (Haryana). (At Present Lodged In Central Jail, Sri
Ganganagar).
----Petitioner
Versus
State Of Rajasthan, Through Its Pp
----Respondent
For Petitioner(s) : Mr. R.S.Gill
Mr. D.S.Gharsana
For Respondent(s) : Mr. A.R.Choudhary, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order (Downloaded on 24/04/2023 at 10:00:27 PM) [2023/RJJD/011535] (2 of 7) [SOSA-1226/2022] 20/04/2023
1. The instant applications for suspension of sentence have been moved in connection of the judgment impugned dated 12.07.2021 passed by Learned Additional Sessions Judge, NDPS Cases, Sangaria, Dist. Hanumangarh in Sessions case No. 11/2018 whereby the accused appellant-Kashmir Singh has been convicted and sentenced to suffer maximum imprisonment of 10 years under Sections 8/21, 22, 25 and 29 of NDPS Act and lesser punishment for the offences under Section 18(c)/27(b)(2) of Drugs and Cosmetic Act and the accused appellant-Ram Kumar @ Rakesh Kumar has been convicted and sentenced to suffer maximum imprisonment of 10 years under Sections 8/21, 22 and 29 of NDPS Act and lesser punishment for the offences under Section 18(c)/27(b)(2) of Drugs and Cosmetic Act.
2. Briefly stated, the facts of the instant case are that a bike bearing registration No. HR 25 B 8633 was intercepted by the police at the time of 'nakabandi' on bhagatpura road on 26.01.2018 at about 03:20 P.M. Upon suspicion, the police officers searched their bag which was kept in between them and during search, total 35 bottles of ONEREX cough syrup and 300 tablets of CARISOMA were found in the bag which was seized by the police and the seizing officer took only two bottles of ONEREX cough syrup out of the 35 bottles for sampling marked A (chemical sample) and B (control sample) which were sent to FSL. Similarly, out of the 30 strips containing 10 tablets each of CARISOMA tablets, two strips were sent for testing as chemical sample and control sample.
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3. Learned counsel for the appellants vehemently submits that the mandatory provisions of NDPS Act have not been complied with, thus, on this count, the recovery of the contraband is vitiated. The samples of contraband were not collected individually from all the 35 bottles of ONEREX cough syrup and 30 strips of CARISOMA tablets for investigation as per the stipulations in the Standing Instruction No.1/89 dated 13.06.1989 issued by Government of India. He further submits that in the present set of facts, the detailed judgment titled Ramchandra v. State of Rajasthan passed by this court in S.B. Criminal Misc. 3rd Bail Application No.1162/2022, wherein the rules pertaining to sample collection contained in Standing Order No. 1/1989 dated 13.06.1989 issued by Government of India under Section 52A of NDPS Act have been enumerated inter alia other aspects, will be applicable. As samples from all of the contraband were not drawn for testing, it cannot be said with utmost certainty that each of the packets contained contraband in it.
4. He further submits that the appellants has spent last 5 years and 3 months in custody, if they is not released on bail the very purpose of filing the appeal would be frustrated. He places reliance on the judgment passed by Hon'ble the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation reported in (2021) 10 SCC 773 to support his argument that looking to the long period of incarceration, the sentence of the applicant deserves to be suspended. As the hearing of the appeal will take long time to conclude, therefore, learned counsel for the (Downloaded on 24/04/2023 at 10:00:27 PM) [2023/RJJD/011535] (4 of 7) [SOSA-1226/2022] appellants submits that the sentence awarded to the accused- appellants may be suspended.
5. Per contra, learned Public Prosecutor vehemently opposes the prayer made by learned counsel for the accused-appellants and submits that the matter pertains to recovery 35 bottles of ONEREX cough syrup and 30 strips of CARISOMA tablets and the judgment of conviction passed by learned Court below does not warrant any interference. As per the custody certificate submitted by learned Public Prosecutor, the petitioner has suffered imprisonment for almost 5 years and 3 months.
6. Heard. Perused the material available on record.
7. After careful scanning of the record and consideration of the submissions, it is observed that it cannot be presumed without solid evidence that all the bottles and strips were containing contraband. Since the doctrine of beyond reasonable doubt is applicable in criminal matters, therefore, even the initial duty lies upon the prosecution to show that the accused-appellants were having contraband in all the bottles and strips. It is emanating from a perusal of the seizure memo that no procedure as stipulated under the statutory instructions has been followed. The representative samples from the alleged contraband were not collected in the correct manner as per the stipulations in the Standing Instruction No. 1/1989 dated 13.06.1989 issued by Government of India under Section 52A of NDPS Act. Therefore, the judgment passed by this Court in Ramchandra (supra) will hold good in the present case since the samples were wrongly collected. It cannot be assumed that all the bottles and tablets (Downloaded on 24/04/2023 at 10:00:27 PM) [2023/RJJD/011535] (5 of 7) [SOSA-1226/2022] contained contraband in them and the impediment as stipulated in Section 37 of the NDPS Act will not be applicable in the present case.
8. 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. 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)
9. The accused-appellants are behind the bars since almost 5 years and 3 months in total and the hearing of appeal is likely to take further more time, therefore, considering the overall facts and circumstances of the case, more particularly, the fact that the question is open to moot that whether all the other 33 bottles and (Downloaded on 24/04/2023 at 10:00:27 PM) [2023/RJJD/011535] (6 of 7) [SOSA-1226/2022] 28 strips of tablets also contained psychotropic substances and 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 appellants.
10. This Court is cognizant of the provisions contained in Section 32-A and Section 37 of the NDPS Act but considering the submissions made by learned counsel for the accused-appellants regarding non-compliance of statutory procedure and keeping in mind the fact of subjection of accused to long period of incarceration pending appeal, this court is of the opinion that it is a fit case for suspending the sentence awarded to the accused appellants.
11. Accordingly, the applications for suspension of sentence filed under Section 389 Cr.P.C. are allowed and it is ordered that the sentence passed by Learned Additional Sessions Judge, NDPS Cases, Sangaria, Dist. Hanumangarh in Sessions case No. 11/2018 vide judgment dated 12.07.2021 against the appellant- applicants- Kashmir Singh S/o S. Mukhtiar Singh & Ram Kumar @ Rakesh Kumar S/o Sh. Mohan Lal shall remain suspended till final disposal of the aforesaid appeal and they shall be released on bail provided each of them executes a personal bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/- to the satisfaction of the learned trial Judge for his appearance in this court on 25.05.2023 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- (Downloaded on 24/04/2023 at 10:00:27 PM)
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1. That they will appear before the trial Court in the month of January of every year till the appeal is decided.
2. That if the applicants changes the place of residence, they will give in writing their 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.
The learned trial Court shall keep the record of attendance of the accused-applicants in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused- applicants were 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 applicants does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.
(FARJAND ALI),J 118-Ashutosh/-
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