Rajasthan High Court - Jaipur
Gani Mohammad S/O Shri Taj Mohammad vs State Of Rajasthan on 11 January, 2023
Author: Farjand Ali
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B.Criminal Misc. Suspension of Sentence Application
No.186/2022
IN
S.B. Criminal Appeal No. 2945/2019
Gani Mohammad S/o Shri Taj Mohammad B/c Muslim, Aged
About 45 Years, R/o Kalyanpura, Bhawani Mandi, Police Station
Bhawani Mandi, Distt. Jhalawar. (Presently Lodged At Central Jail
Kota)
----Appellant
Versus
State Of Rajasthan, Through P.p.
----Respondent
Connected With
S.B.Criminal Misc. Suspension of Sentence Application
No.322/2021
IN
S.B. Criminal Appeal (Sb) No. 2765/2019
Kailash Chand S/o Maganlal B/c Mehar, R/o Gangpura Police
Station Bhawanimandi Distt. Jhalawar (At Present In Sub Jail
Bhawanimandi Distt. Jhalawar)
----Appellant
Versus
State Of Rajasthan, Through P.p.
----Respondent
For Appellant(s) : Mr. Sudhir Jain
Mr. Ali Mohammed Khan
For Respondent(s) : Mr. S.S. Mahala, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
11/01/2023
Heard learned counsel for the accused appellants and
learned Public Prosecutor on the application for suspension of
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sentence and perused the judgment impugned dated 26.09.2019
passed by Special Judge (N.D.P.S. cases) Bhawanimandi, Jhalawar
in Sessions case No. 36/2016(old No. 15/2014) whereby the
accused appellants has been convicted for the offence punishable
under sections 8/18 of NDPS Act and have been sentenced with
maximum of twenty years rigorous imprisonment along with fine
of Rs. 2,00,000/- as well as under sections 8/21 of NDPS Act and
have been sentenced with maximum of twenty years rigorous
imprisonment along with fine of Rs. 2,00,000/-.
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 appellants has spent last 8 years and 9 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 dated 27.08.2022 passed by this Court in SB Criminal
Miscellaneous II Bail Application No. 12906/2022 titled as Suraj
Vs. State of Rajasthan as well as 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 appellants submits
that the sentence awarded to the accused-appellants may be
suspended.
Learned Public Prosecutor vehemently opposes the prayer
made by learned counsel for the accused-appellants and submits
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that the matter pertains to recovery of 15 kilograms of opium and
250 grams of smack 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 8 years and 9
months.
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.
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
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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)
While deciding the bail plea of the accused in the case of
Suraj (supra), this Court had made detailed discussion on the
right to speedy trial. The relevant paragraphs of the aforesaid
judgment are reproduced below:-
"7. ....An under trial prisoner, who is waiting for the trial
to complete and reach a conclusion about his guilt for
the alleged crime, is not only deprived of his right to a
speedy trial but his other fundamental rights like right
to liberty, freedom of movement, freedom of practising
a profession or carrying on any occupation, business or
trade and freedom to dignity are also hampered.
8. .....
9. .....
Courts should not lose sight of the fact that pre-
conviction detention has some punitive implications and
the purpose of detention before conviction is to secure
their presence at the trial and ensure their personal
attendance in cases where necessity dictates their
arrest and jail is the exception not the rule.
......
The inmates who have spent years on end to see what has been decided in their case have probably resigned to their ill fate and become used to the confines of the four walls of the prison. It reminds this Court of the reference made to Dr. Manette's predicament in the Charles Dickens' novel 'A Tale of Two Cities' by Hon'ble the Supreme Court in State of Kerala Vs. Raneef, reported in AIR 2011 SC 340 while dismissing the appeal filed against grant of bail to the accused who was a doctor and had already spent 66 days in custody. In the book, Dr. Manette had spent such a long time of eighteen years as an inmate that he forgot his name, profession and other details about his life that existed prior to him becoming a prisoner at La Bastille. This Court is anxious over the fact that jails debilitate the under-trial prisoners and if after the long wait, the accused is ultimately acquitted, then how would the long years spent by the under-trial in custody be restored to him/her/them. The fact that the imprisonment of a family member affects the whole family cannot be overlooked and if long incarceration (Downloaded on 17/01/2023 at 11:48:26 PM) (5 of 7) [SOSA-186/2022] pending trial is considered to be harsh on the accused, then it should also be considered to be equally harsh on the family members of the accused. The rule is that pre- conviction detention is not warranted by law. ......
Similarly, in cases where under-trial prisoners are made to wait and the trial is prolonged, the procedure of criminal proceedings itself becomes a punishment for such detainees. If the provisions laid down in the Code of Criminal Procedure are followed to the letter and not just in spirit, there will be lesser room for grievance related to speedy trial. Having noted the significance and development of the right to speedy trial, it is also important to consider the following factors while adjudicating a bail application against the backdrop of the right to a speedy trial:
i) The delay should not have been a defence tactic. Who has caused the delay is also to be seen. Every delay does not necessarily prejudice the accused.
ii) The aim is not to interpret the right to speedy trial in a manner so as to disregard the nature of offence, gravity of punishment, number of accused and witnesses, prevailing local conditions and other systemic delays.
iii) If there is a strong reason to believe that the accused will surely flee from justice if released on bail and it will be a hard task for the investigating agency to re-apprehend him, then the benefit of bail should not be extended in his favour.
iv) If it is shown by placing compelling material on record that the release of the accused may create a ruckus in the society or that he will create such a situation wherein the prosecution witnesses will not come forward to depose against him or that he may otherwise hamper the evidence of prosecution in any other manner, then utmost caution needs to be exercised in such cases before granting bail to the accused.
The (iii) and (iv) points are to be considered only when strong and cogent evidence is placed on record or a compelling reason in support has come to light but surely not just on the basis of a simple, blanket submission made by the counsel appearing on behalf of the prosecution/complainant/victim.
10. ......
11. ......
12. ......
13. ......
14. ......
15. ......
16. ....While striking a balance between the statutory bar contained under Section 37 of the NDPS Act and the fundamental right of the accused to get a speedy trial, this Court is of the firm view that an accused person cannot be kept in custody for an indefinite period till the trial is concluded and the presumption of innocence, a well-established principle of criminal jurisprudence, i.e. an accused is innocent until proven guilty, operates in the favour of the petitioner.
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17. ......
18. Considering the above observations, specially the right to speedy trial being a fundamental right, the over-crowdedness and a skewed prison-prisoner ratio, the rightful object of detaining an arrestee and being cognizant of the rigour of Section 37 of the NDPS Act, and in light of the guiding pronouncements of the Apex Court on this issue, this Court deems it just and proper to enlarge the petitioner on bail."
The accused-appellants are behind the bars since almost 8 years and 9 months in total and the hearing of appeal is likely to take further more time, therefore, considering the overall submissions and looking to the totality of facts and circumstances of the case 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.
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 Special Judge, N.D.P.S. Act Cases, Sikrai, District Dausa in Session case No. 1/2021 vide judgment dated 17.12.2021 against the appellant-applicants- Gani Mohammad S/o Shri Taj Mohammad & Kailash Chand S/o Maganlal 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 24.02.2023 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-
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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 PREETI VALECHA /46-47 (Downloaded on 17/01/2023 at 11:48:27 PM) Powered by TCPDF (www.tcpdf.org)