HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Suspension Of Sentence(Appeal) No. 333/2019

in

S.B. Criminal Appeal No.315/2016

1.

Pawan Kumar S/o Sh. Fakka Rai, aged about 31 years,

B/c Bazigar R/o Nej Dela Kalana, Tehsil & District Sirsa

(Haryana)

(Presently Lodged In Central Jail Ajmer)

2.

Mandeep Singh S/o S.surender Singh, aged about 35

Years, B/c Jat Sikh, R/o Uparewal Tehsil Nakodar District

Jallandhar (Punjab).

(Presently Lodged In Central Jail, Ajmer)

----Petitioners

Versus

State Through PP

----Respondent

For Petitioner(s)

:

Mr. R.S. Gill.

For Respondent(s)

:

Mr. R.R. Chhaparwal, PP.

HON'BLE MR. JUSTICE P.K. LOHRA

Order

26/03/2019

Applicant-appellants have laid this third application for

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

trial Court, by the impugned judgment convicted the applicants-

appellants for offence punishable under Section 8 read with

Section 15 of the NDPS Act and handed down 10 years’

imprisonment with fine of Rs.1,00,000/-, and in default of

payment of fine to undergo sentence for one year’s rigorous

imprisonment.

(2 of 5)

[SOSA-333/2019]

The first application for suspension of sentence was

dismissed as not pressed on 5^th of February, 2018 followed by

second application for suspension of sentence on 8^th of December,

2018.

Espousing cause of the applicants-appellants for suspension

of sentence, it is contended by learned counsel that appellants

remained in custody during trial for a considerable period and by

this time their 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 learned counsel that during search and seizure

of contraband, allegedly recovered from the appellants, besides

truck transporting contraband, they too were subjected to

personal search, and notice in this behalf served on them 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 applicants-appellants, 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

(3 of 5)

[SOSA-333/2019]

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 Cases (Narcotics) 284]. It is contended by

learned counsel that there is no criminal antecedents of the

applicants-appellants barring their involvement in the present

case. Learned counsel has also stated that sentence handed

down to co-accused has already been suspended by this Court and

case of present appellants is not distinguishable from him. As

regards prolonged custody of the applicants-appellants, for

granting them 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 & A