The court established that a lack of evidence of knowledge regarding contraband transport can justify the suspension of a sentence under the NDPS Act.

ORDER

1. The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 11.03.2022 passed by the learned Special Judge, NDPS Act Case No.2, Chittorgarh in Sessions Case No.78/2014 (23/2011) whereby he was convicted and sentenced to suffer maximum imprisonment of ten years' rigorous imprisonment along with a fine of Rs.1,00,000/- under Section 8/25 of NDPS Act.

2. It is contended on behalf of the applicant that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and thus, reached at an erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this court being the first appellate Court. Learned counsel for the appellant submits that there is no evidence even for the namesake for establishing the fact that the appellant was having knowledge regarding alleged transport of contraband in contravention of the provision contained in NDPS Act. Even he is not the registered owner of the vehicle. He is booked and tried in this matter only on being son of the registered owner. However, the registered owner failed to establish the fact that at the relevant point of time, the vehicle was being plied under the instruction of the appellant. He is behind the bars since last three years and nine months and there is not likelihood of hearing of the appeal within a short span. He was on bail during trial and did not misuse the liberty so granted to him. Admittedly, the appellant was not present at the time of recovery, hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted.

3. Per contra, learned public prosecutor has vehemently opposed the prayer made on behalf of the accused-applicant for releasing the appellant on application for suspension of sentence.

4. Heard learned counsel for the parties and perused the material available on record.

5. Considering the submissions of learned counsel for the parties and looking to the totality of facts and circumstances of the case, more particularly the facts that the accused-appellant was on bail during the course of trial and the hearing of appeal is likely to take further more time and considering the overall submissions 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.

6. 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 learned Special Judge, NDPS Act Case No.2, Chittorgarh who passed the impugned order dated 11.03.2022 in Sessions Case No. 78/2014 (23/2011) against the appellantapplicant- Shivraj @ Swaraj S/o Het Ram Bishnoi 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 05.05.2023 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 addresses, they will give in writing their changed address to the trial Court.

7. 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