Rajasthan High Court - Jodhpur
Dayaram Chouhan vs Uoi (2023/Rjjd/011538) on 20 April, 2023
Author: Farjand Ali
Bench: Farjand Ali
[2023/RJJD/011538]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 83/2020
IN
S.B. Criminal Appeal No. 2050/2017
Dayaram Chouhan S/o Shri Sahbali Chouhan, Aged About 35
Years, By Caste Noniya, R/o Semariya (Bhikhaipur), Bahariyabad
Police Station, Tehsil Jakhaniya, District Gazipur (Up). (Lodged
In Central Jail Ajmer).
----Petitioner
Versus
Uoi, Through Cbn
----Respondent
For Petitioner(s) : Mr. B.R.Bishnoi
For Respondent(s) : Mr. K.S.Nahar, Spl for CBN
HON'BLE MR. JUSTICE FARJAND ALI
Order 20/04/2023
1. The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 15.11.2017 passed by the learned Special Judge, NDPS cases, Bhilwara in Sessions Case No.25/2016 whereby he was convicted and sentenced to suffer maximum imprisonment of 14 years under Section 8/21 of NDPS Act.
2. Learned counsel for the appellant submits that the provision of Section 57 NDPS Act has not been complied with and no Rajnamcha report has been produced in the trial despite the fact that the police party was having information regarding the transportation of the contraband. Likewise, serious questions have (Downloaded on 24/04/2023 at 10:00:20 PM) [2023/RJJD/011538] (2 of 8) [SOSA-83/2020] been raised with regard to the compliance of Section 42 of the Act, which is mandatory in nature.
3. He further submits that the appellants has spent last 7 years 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 appellants submits that the sentence awarded to the accused- appellants may be suspended.
4. 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 1.060 kilogram Morphine 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 7 years. The impediment contained under Sections 32-A and 37 of NDPS, Act will be attracted in the factual situation of the present case.
5. Heard and perused the material available on record as well as gone through the statutory provisions applicable in the matter.
6. The prosecution has failed to prove the case beyond every shadow of reasonable doubt as it has not been proved that the information under Section 42 (2) of NDPS Act was properly (Downloaded on 24/04/2023 at 10:00:20 PM) [2023/RJJD/011538] (3 of 8) [SOSA-83/2020] supplied to the Deputy Narcotic Commissioner. There is no evidence on record to corroborate the fact that the information under Section 42 of NDPS Act was received by the Deputy Narcotic Commissioner and no other document has been produced to show the compliance of Section 42 of NDPS Act which is mandatory in nature. There is neither any proof of dispatching of the information to the superior officer nor is there any proof that reflects that the same was sent or received and lastly, there is nothing on record to show that there was acknowledgment on part of the superior officer upon receiving the information.
7. There are serious discrepancy in between the statements of PW-5 and PW-7. As per the statement of PW-4 Dharam Singh, it is stated in his cross-examination that it was PW-5 B.N. Meena who sent the information to the superior officer whereas the testimony of PW-7 reflects that it was PW-7 who actually used to record who took the information for the purpose of relaying it to the superior officer but he did not record any such thing in the present matter and he even states that PW-5 did not share the said information.
8. In Vijaysinh Chandubha Jadeja Vs. State of Gujarat reported in AIR 2011 SC 77, the Hon'ble Apex court indicated that the failure to comply with the provisions of NDPS Act would render the recovery of illicit articles ineffective and vitiate the conviction. The relevant part of the judgment is as follows:-
"Under Section 42 of the NDPS Act, the empowered officer can enter, search, seize and arrest even without warrant or authorisation, if he has reason to believe from his personal knowledge or information taken down in writing, that an offence under Chapter IV of the said Act has been committed. Under proviso (Downloaded on 24/04/2023 at 10:00:20 PM) [2023/RJJD/011538] (4 of 8) [SOSA-83/2020] to Sub-section (1), if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief and send the same to his immediate official superior in terms of Sub-section (2) of the Section.
'22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under Sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."
9. Likewise, if the Police Officer has information regarding illegal transportation of any contraband and he is required to take immediate steps then it is incumbent upon him to write down the information in writing, send a copy of the same to the superior officer forthwith and mention all these things in daily rojnaamcha diary. It is an admitted position that the information was not relayed to the superior officers and the other requisites were also (Downloaded on 24/04/2023 at 10:00:20 PM) [2023/RJJD/011538] (5 of 8) [SOSA-83/2020] not fullfilled. It is trite law that the provision of Section 42 of the NDPS Act is required to be applied mandatorily as propounded in the case of Vijaysinh Chandubha Jadeja (supra). The NDPS Act is called a draconian law because of its stringent provision of punishment and that is why the mandatory provisions are required to be complied with stricto sensu, failure of which vitiates the recovery.
10. It is admitted position that copies of Rojnamcha were not transmitted to the superior officers which were required to be done as per the statutory mandate. For the purpose of hearing this application for suspension of sentence tentatively, it can be considered that the compliance of Section 42 of NDPS Act was not made in letter and spirit.
11. 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 (Downloaded on 24/04/2023 at 10:00:20 PM) [2023/RJJD/011538] (6 of 8) [SOSA-83/2020] 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)
12. The accused-appellant is behind the bars since almost 7 years in total and the hearing of appeal is likely to take further more time, therefore, considering the overall 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 appellant.
13. 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.
14. In light of the judgments cited above, the provision contained in Section 42 of the NDPS Act, this Court is of the view that the non-compliance of mandatory provisions of the NDPS Act has to be dealt with a strict hand and it is imperative upon the courts to be cautious while adjudicating such matters where (Downloaded on 24/04/2023 at 10:00:20 PM) [2023/RJJD/011538] (7 of 8) [SOSA-83/2020] seizure is concerned under the NDPS Act as no accused should be able to walk scot-free for want of proper implementation and following of the procedure established by law.
15. Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentence passed by the learned Special Judge, NDPS cases, Bhilwara in Sessions Case No.25/2016 against the appellant- applicant- Dayaram Chouhan S/o Shri Sahbali Chouhan, 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 25.05.2023 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 address(s),they will give in writing their changed address to the trial Court.
16. 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- (Downloaded on 24/04/2023 at 10:00:20 PM)
[2023/RJJD/011538] (8 of 8) [SOSA-83/2020] 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.
(FARJAND ALI),J 108-Ashutosh/-
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