Rajasthan High Court - Jaipur
Lakhpat Singh Son Of Buddha Singh Rawat vs State Of Rajasthan on 4 January, 2023
Author: Farjand Ali
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Cr. Misc. Suspension of Sentence Application No.1642/2022
IN
S.B. Criminal Appeal No. 1200/2022
Lakhpat Singh Son Of Buddha Singh Rawat, Resident Of Govaliya
Police Station, Bhinay, District Ajmer, At Present Ldged In The
Central Jail, Ajmer
----Appellant
Versus
State Of Rajasthan, Through The Public Prosecutor
----Respondent For Appellant(s) : Mr. Ashvin Garg For Respondent(s) : Mr. Mangal Singh Saini, PP HON'BLE MR. JUSTICE FARJAND ALI Order 04/01/2023 Heard learned counsel for the accused-appellant and learned Public Prosecutor on the application for suspension of sentence and perused the judgment impugned dated 15.06.2022 passed by Special Judge, NDPS Act cases No.1 Kekri District Ajmer in Sessions Case No.15/2010 whereby the accused-appellant has been convicted for the offences punishable under sections 8/15 and 8/18 of NDPS Act, 1985 and has been sentenced with maximum of 15 years rigorous imprisonment along with fine of Rs. 50,000/-.
Learned counsel for the accused-appellant submits that a patently false case has been foisted against the appellant. He has nothing to do with the offences alleged. After thorough (Downloaded on 11/01/2023 at 12:02:25 AM) (2 of 5) [SOSA-1642/2022] investigation, he was exonerated from the charges levelled against him and his involvement was not found by the agency and, therefore, charge-sheet came to be filed against another accused Mitthulal. After submission of charge-sheet, an application came to be submitted at the behest of the prosecution under Section 193 of the Cr.P.C. but that was dismissed vide order dated 20.06.2009. After lapse of some time, the same prayer was made by the prosecution by filing a subsequent application under Section 193 of Cr.P.C. to implead the present appellant as an accused which came to be allowed by the learned trial Court on 15.03.2016. In this view of the matter, learned counsel submits that by virtue of Section 362 of Cr.P.C. and in view of the judgment passed by Hon'ble the Supreme Court in case of Adalat Prasad Vs. Rooplal Jindal & Ors. reported in (2004) 7 SCC 338, after passing of any order, the criminal Court becomes functus officio and review is not permissible once the criminal Court has taken cognizance and arraigned any person as an accused and without there being any change of circumstance or change in legal situation, the same prayer cannot be allowed. Thus, learned trial Court has committed a patent error of law in arraigning the appellant as an accused. Learned counsel drew attention of this Court towards the statement of PW33 Arpan who was the SHO at the relevant point of time and conducted investigation in this matter. He has categorically admitted in the cross examination that it was revealed during the investigation that the premise was rented out to the other person by the accused-appellant Mitthulal vide deed dated 21.06.2008 and the same has been tendered into evidence as Exhibit- P-34. This witness also admits in cross (Downloaded on 11/01/2023 at 12:02:25 AM) (3 of 5) [SOSA-1642/2022] examination that it was revealed during the investigation that in the month of July-August 2008, the accused-appellant Lakhpat Singh was living in a hotel situated near highway along with his family and he was running the said hotel. He categorically admits that as per his investigation, the accused-appellant Lakhpat Singh went to Ramdeora on 18.08.2008 and when he fell sick, he got admitted in Kesari Hospital. The relevant record was collected by him and produced on record. It is the admitted case of the prosecution that neither the appellant was found present at the crime scene nor any incriminating material or contraband was recovered from his possession. He has been made accused on the strength of confessional statement made by the co-accused during police custody which is otherwise not admissible in evidence by virtue of Sections 25 and 26 of Indian Evidence Act. The said disclosure does not come within the ambit of Section 27 of Indian Evidence Act. It has been propounded by the Privy Council in the case of Pulukuri Kottaya & Ors. Vs. Emperor (AIR 1947 PC 67) that since nothing was discovered or recovered, the disclosure statement made while in custody which distinctly connects the accused-appellant with the commission of the crime cannot be taken as an admissible piece of evidence. It is submitted that the learned trial Court has committed a grave error of law in reaching on an erroneous conclusion of guilt and therefore, the judgment of conviction and order of sentence is bad in the eyes of law. Since nothing is there on record from which involvement of the accused can be presumed, therefore, the condition under Section 37 and the impediment under Section 32-A of the NDPS Act do not come in way of suspending the sentence of the appellant. He was on bail (Downloaded on 11/01/2023 at 12:02:25 AM) (4 of 5) [SOSA-1642/2022] during the course of the trial but the liberty granted in his favour was never misused and he was present on the date of conviction. He has a strong arguable case in his favour and upon success of the appeal, if the sentence has not been suspended, it would frustrate the purpose of filing this appeal. It is submitted that learned counsel for state admits that nothing was recovered from the appellant and he is not in a position to refute the admissions made by the Investigation Officer PW33 before the trial Court. Therefore, the application for suspension of sentence may be granted.
Learned Public Prosecutor vehemently opposes the prayer made by learned counsel for the accused-appellant.
Considering the overall submissions of the parties 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-appellant.
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 Act cases No.1 Kekri District Ajmer vide judgment dated 15.06.2022 in Sessions Case No.15/2010 against the appellant-applicant- Lakhpat Singh Son Of Buddha Singh Rawat 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 (Downloaded on 11/01/2023 at 12:02:25 AM) (5 of 5) [SOSA-1642/2022] satisfaction of the learned trial Judge for his appearance in this court on 13.02.2023 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.
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- 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 Keshav/37 (Downloaded on 11/01/2023 at 12:02:25 AM) Powered by TCPDF (www.tcpdf.org)