[2023/RJJP/000725]

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Misc. Suspension of Sentence Application

No.763/2022

In

S.B. Criminal Appeal No. 1113/2022

Mohanlal S/o Mathuralal, Resident Of Village Devrimund Tehsil

Chippabarod District Baran (Raj) (At Present Confined In District

Jail Jhalawar)

----Appellant

Versus

Union Of India, Central Bureau Of Narcotics Through Vipin

Kumar Inspector Office Of Narcotics Department Central

Narcotics Bureau, Gwalior (M.p) Through Special P.p. Jhalawar

(Raj)

----Respondent

For Appellant(s)

:

Mr. Rohit Khandelwal

For Respondent(s)

:

Mr. Suresh Kumar, PP

HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

Order

27/01/2023

Heard learned counsel for the accused appellant and learned

Public Prosecutor on the application for suspension of sentence

and perused the judgment impugned dated 04.06.2022 passed by

Special Judge NDPS Cases, Jhalawar whereby the accused

appellant has been convicted for the offence punishable under

sections 8/19 of NDPS Act and has been sentenced to maximum

10 years rigorous imprisonment along with fine of Rs. 1,00,000/-

in default of fine, further undergo one year of rigorous

imprisonment and has been convicted for the offence punishable

under sections 8/26 of NDPS Act and has been sentenced to

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maximum 3 years rigorous imprisonment along with fine of Rs.

10,000/- in default of fine, further undergo two months’ rigorous

imprisonment.

Learned counsel for the accused-appellant contended that

the learned Trial court has convicted the accused appellant without

considering the provisions enshrined in the NDPS Rules, 1985. In

complete transgression to the Rules 17 and 18, the conviction of

the appellant is recorded and he has been sentenced under

Section 8/19 and 8/26 of the NDPS Act for 10 years and three

years imprisonment, respectively alongwith a fine in both the

offences.

The learned counsel for NCB has vehemently opposed the

application for suspension of sentence. It is contended that no

objection regarding infringement of Rules 17 and 18 were taken

during the trial. Therefore, application for suspension of sentence

may be dismissed. Learned counsel for the accused-appellant has

submitted the judicial pronouncement made in the case of State

(GNCT of Delhi) Narcotics Control Bureau Vs. Lokesh Chadha in

Criminal Appeal No.257 of 2021 decided on 02.03.2021.

I have considered the contentions.

Rule 17 of NDPS Rules 1985 mandates that the opium

delivered by the cultivator to the concerned authority shall be

forwarded to the opium factory and prior to that suspected

adulterated substance shall be sealed in the presence of the

cultivator. Further, Rule 18 postulates that the sealed opium

received, shall be opened and its sample shall be drawn in the

presence of the cultivator. It is further pertinent to mention that

before confiscating the adulterated opium the concerned cultivator

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is required to be given a reasonable opportunity of showing

caused against the proposed order as per Rule 23.

It is also to be noted that the Coordinate Bench in the case

of Ramkedar Vs. Union of India in S.B. Criminal Suspension of

Sentence Application No.1055/2018 In S.B. Criminal Appeal

No.12/2018 also granted the benefit of bail to the concerned

appellant. The Judgment cited by the learned counsel for the NCB

pertains to Section 37 of the NDPS Act and is with regard to

commercial quantity. Though, it is correct that principle of bail and

principle of suspending the sentence cannot be put at par, but

looking to the nature of the case and evidence produced in the

trial, it is not a case where the application for suspension of

sentence can be declined.

Therefore, in view of the irregularity pointed out by the

applicant and considering the fact that during the