Rajasthan High Court - Jodhpur
Sonu Raisikh vs Uoi on 14 March, 2023
Author: Farjand Ali
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 77/2022
IN
S.B. Criminal Appeal No. 243/2020
Arun S/o Roshan Lal, Aged About 34 Years, B/c Soni, R/o Ward
No. 19 Anoopgarh, Ps Anoopgarh District Sri Ganganagar.
(Presently Lodged In Central Jail Udaipur).
----Petitioner
Versus
Union Of India, Through Special PP-CBN
----Respondent
Connected With
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 573/2020
IN
S.B. Criminal Appeal No. 243/2020
Sonu Raisikh S/o China Raisikh, Aged About 36 Years, Village
Bareka Ps And Tehsil And District Firozpur Punjab Now Ward No.
12 C/o Bhajan Singh Anoopgarh Ps Anoopgarh, District Sri
Ganganagar. (Presently Lodged In Central Jail Udaipur).
----Petitioner
Versus
UOI, Through Special PP-CBN
----Respondent
For Petitioner(s) : Mrs. Vimla Rani, Present in person.
Mrs. Ritu Soni, Present in person.
For Respondent(s) : Mr. Gaurav Singh, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order 14/03/2023 Lawyers are abstaining from appearing before the court. (Downloaded on 16/03/2023 at 10:49:08 PM)
(2 of 5) [SOSA-77/2022] The instant applications for suspension of sentence have been moved in connection of the judgment impugned dated 12.12.2019 passed by Learned Special Judge, NDPS cases No.2, Dist. chittorgarh in Sessions case No. 91/2019 whereby the accused appellants have been convicted for the offences punishable under sections 8/15 of NDPS Act and they have been sentenced with maximum of ten years rigorous imprisonment along with fine of Rs. 1,00,000/-.
The wife of the petitioner is present in person before this court and she submits the mandatory provisions of NDPS Act have not been complied with, thus, on this count, the recovery of the contraband is vitiated. The appellants have spent last 6 years and 04 months in custody, if they are not released on bail the very purpose of filing the appeal would be frustrated. He placed reliance on the Petition(s) for Special Leave to Appeal (Crl.) No(s) 2893/21 titled Manohar Lal Ainani Vs. 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 vs. Central Bureau of Investigation and Ors. reported in AIR 2022 SC 3386, the aforesaid aspect has been reiterated. 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.
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 of 93 kilograms of poppy husk and the judgment of conviction passed by learned Court below does not warrant any interference. As per the custody (Downloaded on 16/03/2023 at 10:49:08 PM) (3 of 5) [SOSA-77/2022] certificate submitted by learned Public Prosecutor, the appellant has suffered imprisonment for almost 6 years and 4 months. The impediment contained under Sections 32-A and 37 of NDPS, Act will be attracted in the factual situation of the present case.
Heard and perused the material available on record as well as gone through the statutory provisions applicable in the matter.
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 (Downloaded on 16/03/2023 at 10:49:08 PM) (4 of 5) [SOSA-77/2022] 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) The accused-appellants are behind the bars since almost 6 years and 4 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 Learned Special Judge, NDPS cases No.2, Dist. chittorgarh in Sessions case No. 91/2019 vide judgment dated 12.12.2019 against the appellant-applicants- Arun S/o Roshan Lal and Sonu Raisikh S/o China Raisikh 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 their appearance in (Downloaded on 16/03/2023 at 10:49:08 PM) (5 of 5) [SOSA-77/2022] this court on 17.04.2023 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-
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 240-divya/-
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