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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Ashok Kumar Jain, J.
Arun Kumar Pandey S/o Jaleshwar Pandey and ors. – Petitioners
Versus
Union Of India, Through PP. - Respondent
S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1323 of 2018 In S.B. Criminal Appeal No. 1968 of 2018
Decided On : 10-04-2023
NDPS Act - Sections 67, 37 and 32A – Criminal Procedure Code,1973 - Section 389 - Indian Evidence Act - Section 106 – Transportation of illicit contraband goods - Seizure - Appeal Against conviction - Appellants submitted that trial Court has grossly erred in convicting and sentencing accused appellants - He submitted that seizure memo clearly indicated that in each gunny bag, 10-20 small packets were there and officer who was conducting seizure had not collected samples from all bags - He further submitted that mandatory provisions of NDPS Act were again violated and no proceedings took place at spot which was admitted by witnesses before learned trial court - Whether learned counsel for appellants are ready for arguments on appeal - When specific questions were asked on merits, learned counsel appearing on behalf of both appellants have categorically made a statement that they are pressing only and only application for suspension of sentence. Para 5
Finding of Court :
Court finds that mandatory provisions are not followed in instant case - There is no personal search as entire contraband and was found in seven gunny bags - There was no mandate under law to obtain search warrant from any Court or Magistrate - No one can doubt either of public servants unless there are reasons on ground to doubt bonafides of search and seizure officers - No suggestion or statement was made with respect to fact that from where these individuals had purchased 130Kg cannabis and transported - None of appellants have made a statement before Seizing Officer that they were peddlers only and actually a driver or cleaner - They were carrying goods and if no suggestion is made then obviously direct responsibility lies on appellants and if they fail to discharge burden of proof as provided under Section 106 of Indian Evidence Act then it cannot be pleaded by appellants that they are drivers or cleaner only.
Result : Application for suspension of sentence is dismissed. Misc. application stands disposed of.
ORDER :
1. Present application for suspension of sentence in present appeal, filed against order of conviction and sentence dated 18.08.2018 in Sessions Case No. 25/2017, passed by learned Special Judge (NDPS Cases), Dausa is filed on behalf of appellant.
2. Learned counsel for appellants submitted that the trial Court has grossly erred in convicting and sentencing the accused appellants. He submitted that the seizure memo clearly indicated that in each gunny bag, 10-20 small packets were there and officer who was conducting seizure had not collected samples from all bags. He further submitted that the mandatory provisions of NDPS Act were again violated and no proceedings took place at the spot which was admitted by the witnesses before the learned trial court. He further submitted that the information of transportation of illicit contraband goods was received well in advance but no efforts were made to obtain search and seizure warrant from the Magistrate. Moreover, no chance was offered to present appellants for their search before any Gazetted officer or Magistrate. He for that submitted that accused have already undergone sentence for more than 6 years and maximum punishment in the matter is 10 years of rigorous imprisonment and they are entitled to be released on bail during the pendency of present appeal. While referring judgments of Hon’ble Supreme court in the case of Ramnik Singh Vs. Intelligence Officer (2013) SCC Online 1276 and Mayuresh Nandkumar Purohit Vs. Kaushik Manna 2018 CLR (SC) 251 he submitted that the Hon'ble Supreme Court while considering the fact that when maximum punishment awarded was 10 years and more than 50 percent was already undergone by the accused persons, they were released on bail after allowing the application for suspension of sentence. While referring the judgment of Co-ordinate Bench of this Hon'ble Court in case of Jagdish Prasad Sharma versus Union of India (S.B. Criminal Misc. Bail Application No. 164/2022 in S.B. Criminal Appeal No. 246/2022) he submitted that it is not mandatory for the Court to consider the embargo under Sections 37 and 32A of NDPS Act. He further relied upon the judgment passed by Hon'ble Supreme Court in the case of Boota Singh & Ors. Vs. State of Haryana (2021) 0 Supreme (SC) 203 and submitted that in case of non-compliance of provisions of NDPS Act, appellants are entitled for release on bail. He further referred the judgment of Hon'ble Supreme Court in case of Mossa Koya K.P. Vs. State (NCT of Delhi) 2021 0 Supreme(SC) 945 wherein application for suspension of sentence under Section 389 Cr.P.C. was allowed. Similarly, in SLP (criminal) No.10515/2019 titled as Sabir Vs. State of Madhya Pradesh and Anr. order dated 10.02.2023 passed by Hon'ble Apex Court was also referred wherein statement under Section 67 of NDPS Act was not relied in light of Tofan Singh Vs. State of Tamil Nadu (2021) 4 SSC 1. Learned counsel for appellant further relied upon judgment passed by Hon'ble Supreme Court in the case of Union of India Vs. Leen Martrin & Anr. 2018 0 Supreme (SC) 188 again on the point of statement under Section 67 of NDPS Act. He further relied upon the judgment in the cases of Netram Vs. State of Rajasthan 2013 0 Supreme(Raj) 1948, Vardi Chand @ Pappu Vs. State of Rajasthan 2009 0 Supreme (Raj.) 2380, Navla Vs. State of Rajasthan 2005 (1) RCC 523, Bhanwar Lal @ Bhura Vs. State of Rajasthan (S.B. Criminal Misc. Suspension of Sentence No. 797/2022 in Criminal Appeal No. 1186/2022)and submitted that more than 50 percent of the sentence awarded is already undergone and since disposal of appeal will take more time, appellants be released on bail.
3. Aforesaid contentions are opposed by learned Special Public Prosecutor while referring the judgments of Hon'ble Supreme Court in case of Union of India Vs. Rattan Malik (2009) 2 SCC 624, State of Kerala Vs. Rajesh (Criminal Appeal No. 154157 of 2020) and Dadu @ Tulsidas Vs. State of Maharashtra (Writ Petition (CRL.) 169/1999) s
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Point of Law : Non-compliance of mandatory provisions of NDPS Act has to be dealt with a strict hand and it is imperative upon courts to be cautious while adjudicating such matters where seizure is c....
Sentence can be suspended and bail granted to accused where hearing of appeal is likely to take further more time.
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The court established that non-compliance with procedural requirements under the NDPS Act can render evidence inadmissible, and prolonged incarceration can be a valid ground for suspending a sentence....
The main legal point established in the judgment is the discretion of the appellate court to suspend the sentence pending appeal, the conditions for such suspension, and the practical reasons for del....
The main legal point established in the judgment is that the appellate Court has the discretion to suspend the sentence of a person convicted under the NDPS Act pending appeal, subject to the conditi....
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