HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Suspension Of Sentence(Appeal) No. 710/2018

In

S.B. Criminal Appeal No. 1298/2016.

Buddharam S/o Sh. Prahladram, Aged About 45 Years, B/c

Vishnoi, R/o Vill. Phinch, P.S. Luni. (Presently lodged at Central

Jail, Jodhpur)

----Petitioner

Versus

N.C.B., Through PP

----Respondent

For Petitioner(s)

:

Mr. Mahesh Bora, Sr. Advocate with

Mr. Nishant Bora and Mr. Saransh Vij.

For Respondent(s)

:

Mr. M.R. Pareek, Special Public

Prosecutor.

HON'BLE MR. JUSTICE P.K. LOHRA

Order

20/09/2018

Appellant, convicted for offence under Section 8 read with

Section 17 of the N.D.P.S. Act by learned trial Court, has made

this second attempt for suspension of sentence. Learned trial

Court, while indicting the appellant for aforesaid offence, handed

down maximum sentence of twelve years’ rigorous imprisonment

with fine of Rs.2,00,000/-, and in default of payment of fine to

undergo one years’ rigorous imprisonment.

On behalf of appellant, after admission of appeal, at the

threshold, first application for suspension of sentence was filed on

03.01.2018 but the same was dismissed as not pressed on

05.03.2018. While rejecting the first application for suspension of

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[SOSA-710/2018]

sentence as not pressed, liberty was granted to the learned

counsel for the appellant to renew the prayer after four months.

Arguing on this second application, it is submitted by learned

Senior Counsel that there is material change in the circumstances

posterior to rejection of first application. Learned Senior Counsel

has argued that although learned trial Court has awarded

substantive sentence of twelve years’ rigorous imprisonment but

during trial and after filing of the appeal, appellant has completed

period of incarceration for more than 5 years and 2 months.

Thus, harping on prolonged custody of the appellant, learned

Senior Counsel would contend that appellant’s sentence may be

suspended inasmuch as final hearing of the appeal is likely to take

considerable time. In support of his arguments, learned Senior

Counsel has placed reliance on following legal precedents:

(1)

Thana Singh Vs. Central Bureau of Narcotics

[(2013) 2 SCC 590]

(2)

Mayuresh Nandkumar Purohit Vs. Kaushik Manna

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

Learned Senior Counsel has further argued that while

convicting appellant for aforesaid offence, learned trial Court has

not at all cared to examine flagrant violation of Section 50 of the

NDPS Act by Seizure Officer inasmuch as despite personal search

of the appellant in adherence of mandatory legal provisions, he

was not allowed access to Gazetted Officer or Magistrate before

carrying out search and seizure. It is also submitted by learned

Senior Counsel that investigation in the matter is carried out by

the NCB sleuth, who was also a member of raid party, and

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[SOSA-710/2018]

therefore, prima facie, it is a clear case of partisaned

investigation. Learned Senior Counsel has also submitted that

besides conviction in the instant case, there is no other criminal

antecedent of the appellant. Lastly, learned Senior Counsel has

urged that the contraband was recovered on 27.06.2013 and

samples were drawn but the same were sent for FSL examination

on 01.07.2013, i.e., after four days in gross violation of Standing

Order No.1 of 88, issued by NCB in Clause 1.13. In support of his

argument, learned Senior Counsel has placed reliance on a

decision of Supreme Court in case of Mohan Lal Vs. State of

Punjab [2018 (9) SCALE 663].

Per contra, learned Special Public Prosecutor has vehemently

opposed suspension application of the appellant. It is contended

by learned counsel for NCB that there is no change much less

material change in the circumstances after rejection of first

application for suspension of sentence. Learned counsel, Mr.

Pareek