HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Criminal Misc Suspension Of Sentence Application (Appeal)

No. 797/2019

Kasam Ali S/o Faiz Khan, By Caste Muslim, Resident Of Ward

No.1, Keshrisinghpur, District Srigangangar, Rajasthan

(At Present Lodged In Central Jail Sriganganagar)

----Petitioner

Versus

State Of Rajasthan, Through Pp

----Respondent

Connected With

S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No.

455/2019

In

S.B. Criminal Appeal (Sb) No. 525/2019

Mukesh Kumar S/o Shishpal, Aged About 36 Years, By Caste

Meghwal, Resident Of Ward No.6, Dashmesh Colony, Kodiyonwali

Puli, Purani Abadi, Sriganganagar (Raj).

(Presently Lodged In Central Jail Sriganganagar)

----Petitioner

Versus

State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s)

:

Mr. Pankaj Gupta

Mr. Pradeep Shah

For Respondent(s)

:

Mr. Gaurav Singh, P.P.

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Order

15/12/2021

Heard learned counsel for the appellants as well as learned

Public Prosecutor on applications for suspension of sentence.

By the instant applications under Section 389 Cr.P.C.,

applicant-appellants have craved for suspending the sentence

handed down by Special Judge, NDPS Cases, Sri Ganganagar (for

(2 of 4)

[SOSA-797/2019]

short, ‘learned trial Court’), by its verdict dated 15.03.2019.

Learned trial Court, by the aforesaid verdict, punished the

applicant-appellant - Kasam Ali under Sections 8/21, 25, 29 of the

NDPS Act and handed down sentence of 10 years’ rigorous

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

of fine to further undergo sentence for one year’s additional simple

imprisonment. Learned trial Court, by the aforesaid verdict,

punished the applicant-appellant - Mukesh Kumar under Sections

8/21, 8/29 of the NDPS Act and handed down sentence of 10

years’ rigorous imprisonment with fine of Rs.1,00,000/-and in

default of payment of fine to further undergo sentence for one

year’s additional simple imprisonment.

It is submitted by learned counsel that in the present case,

as per prosecution, 48 bottles of Corex Cough Syrup have been

recovered from the accused-appellants; benefit of bail has been

granted by co-ordinate Bench of this Court in S.B. Criminal Misc.

III Bail Application No.8986/2019 (Ashok Kumar Vs. State of

Rajasthan) on the basis of the judgment passed by Hon’ble Apex

Court in S.B. Criminal Misc. Second Bail Application No.9028/2018

on 04.07.2019 and the relevant portion was also reproduced by

co-ordinate Bench of this Court. It is further submitted by learned

counsel for the appellants that during trial appellants were on bail,

therefore, their sentence may be suspended.

Learned Public Prosecutor has vehemently opposed the

applications for suspension of sentence and stated that earlier

(3 of 4)

[SOSA-797/2019]

Hon’ble Apex Court in case of Union of India Vs. Rattan Mallik @

Habul passed in Criminal Appeal No.137/2009 vide judgment

dated 23.01.2009 remanded the matter back to the High Court for

fresh consideration of the application filed by the respondent for

suspension of sentence and for granting of bail keeping in view of

the parameteres of Section 37 of the NDPS Act.

Having regard to the facts and circumstances of the case,

since order passed by co-ordinate Bench of this Court on the basis

of judgment of Hon’ble Apex Court later on 04.07.2019 and

having the identical circumstances and particularly the fact that

during trial accused-appellants were on bail. Therefore, upon

consideration of the arguments on behalf of learned counsel for

the appellants as well as learned Public Prosecutor, without

expressing any opinion on merits of the case, I am of the opinion

that restrictions contained in Section 37 of the NDPS Act did not

operate against the appellants, I feel inclined to accept both the

applications for suspension of sentence.

Accordingly, both the appl