Possession of small quantities of contraband under the NDPS Act is bailable, allowing for suspension of sentences.

ORDER

1. Heard learned counsel for the appellant as well as learned Public Prosecutor.

Admit. Issue notice. Send for the record.

2. Learned Public Prosecutor accepts notices on behalf of the respondent - State of Rajasthan, therefore, notices need not be issued.

3. Record requisition may be given 'Dasti' to the learned counsel for the appellant.

4. Heard learned counsel for the appellant on the application seeking suspension of sentences (SoS Application No. 610/2021).

5. Learned counsel for the applicant-appellant stated that only 5 gram of Smack has been recovered from the accused-appellant which is below commercial quantity. Learned counsel also stated that as per para number 8 of the order passed by the co-ordinate Bench of this Court in the case of Rajkumar S/o Heera Lal Vs. State of Rajasthan (S.B. Criminal Misc. Bail Application No. 13423/2019, decided on 03.10.2019, if the recovered contraband is of small quantity, the offence is clearly bailable. Learned counsel stated that the applicant-appellant has wrongly been implicated in this case; that the applicant-appellant was on bail during the trial; and that the trial will take time. With all these submissions, learned counsel for the applicant-appellant prays that the benefit of suspension of sentences may be granted to the applicant-appellant and he may be ordered to be released on bail.

6. Per contra, learned Public Prosecutor stated that as per evidence of the prosecution, it is proved beyond doubt that 5 gram of Smack has been recovered from the accused-applicant; that the accused-applicant has been made accused for the offence punishable under Section 8/21 of the NDPS Act but the learned Public Prosecutor does not controvert these facts that the recovered contraband is of a small quantity and the applicant-appellant was on bail during trial.

7. For ready reference, the relevant portion of the order dated 03.10.2019 (supra) is quoted herein as under:-

"8.................................... Now the offence of possession of a small quantity (upto 1 kg) of Ganja, under Section 21 of the NDPS Act, if proved, can lead to a sentence upto six months, and fine. By virtue of Section 37(1) of the NDPS Act, the offence has become cognizable, however, as per Item No. 3 in the list (In Part II of the First Schedule) offence is clearly bailale."

8. Upon a consideration of the arguments advanced on behalf of the petitioner and having regard to the facts and circumstances of the case, this Court is of the opinion that it is a fit case for suspending the sentences awarded to the accused-appellant.

9. Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Special Judge, NDPS Cases, Bhilwara (Rajasthan), vide judgment dated 21.09.2021 in Sessions Case No. 28/2017 against the appellant-applicant, Durgesh Prajapat S/o Bhawani Shanker, 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 sound and solvent sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in this Court on 08.11.2021 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

1. That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/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.

10. The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant(s) was/were tried and convi