HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Suspension of Sentence (Appeal) No. 219/2019

in

S.B. Criminal Appeal No.315/2016

Kulwant Ram S/o Sh. Dalip Ram, Aged About 42 Years, B/c

Bazigar R/o Dethu Khaira Tehsil And District Sirsa (Haryana)

(Presently Lodged In Central Jail, Ajmer)

----Petitioner

Versus

State of Rajasthan

----Respondent

For Petitioner(s)

:

Mr. R.S. Gill

For Respondent(s)

:

Mr. K.V. Vyas, Public Prosecutor.

HON'BLE MR. JUSTICE P.K. LOHRA

Order

21/02/2019

Applicant-appellant has laid this second application for

suspension of sentence under Section 389 Cr.P.C. The learned

trial Court, by the impugned judgment convicted the applicant-

appellant for offence punishable under Section 8 read with Section

15 of the NDPS Act and handed down 10 years’ imprisonment for

each offence with fine of Rs.1,00,000/-, and in default of payment

of fine to undergo sentence for one year’s rigorous imprisonment.

The first application for suspension of sentence was

dismissed as not pressed on 5^th of February, 2018 with liberty to

renew prayer after six months.

(2 of 5)

[SOSA-219/2019]

Espousing cause of the applicant-appellant for suspension of

sentence, it is contended by learned counsel that appellant

remained in custody during trial for a considerable period and by

this time his custodial period has exceeded more than five years.

Learned counsel further submits that final hearing of the appeal is

unlikely in new future. Adverting to the merits of the case, it is

also contended by the learned counsel that during search and

seizure of contraband, allegedly recovered from the appellant,

besides truck transporting contraband, he too was subjected to

personal search, and notice in this behalf served on him under

Section 50 of the NDPS Act is infirm having direct ramification on

entire search and seizure proceedings.

Elaborating his

submissions, learned counsel has urged that in the notice under

Section 50, served on the applicant-appellant, the Seizure Officer

has incorporated third option of himself to carry out search and

seizure, which is dehors the mandatory provisions of Section 50 of

the NDPS Act. In support thereof, learned counsel has placed

reliance of a decision of Supreme Court in State of Rajasthan V/s.

Parmanand [(2014) 5 SCC 345]. It is also submitted by learned

counsel that to prove search and seizure, despite availability of

umpteen time, no endeavour was made by the investigating

agency to procure independent witnesses but this aspect has not

at all been considered by the learned trial Court. He, therefore,

submits that non-compliance of Section 100(3) & (4) Cr.P.C. is

clearly apparent which has prima facie vitiated the search and

seizure. In support of his contention, learned counsel has placed

reliance on a decision of this Court in Ali Khan Vs. State of

Rajasthan [2013 (4) Cr.L.R. (Raj.) 1920] and Supreme Court

decision in State of Punjab Vs. Paramjit Singh [2015 (2) Drugs

(3 of 5)

[SOSA-219/2019]

Cases (Narcotics) 284]. It is contended by learned counsel that

there is no criminal antecedents of the applicant-appellant barring

his involvement in the present case. As regards prolonged

custody of the applicant-appellant, for granting him indulgence in

the matter of suspension of sentence, learned counsel has placed

reliance on following judgments:

•

Thana Singh V/s. Central Bureau of Narcotics [(2013) 2 SCC

603]

•

Mayuresh Nandkumar Purohit Vs. Kaushik Manna & Anr.

[2018 Cr.L.R.(SC) 251].

Per contra, learned Public Prosecutor has vehemently

opposed the application for suspension of sentence. It is

submitted by learned Public Prosecutor that recovery of huge

quantity of contraband in the matter, which is umpteen times

higher than commercial quantity, is sufficient to decline application

for suspension of sentence by invoking embargo under