Babu Madak And Ors vs State

Accused-petitioners have laid this second application for suspension of sentence awarded by learned trial Court. Learned trial Court, upon conclusion of trial, convicted appellants for offence punishable under Section 8 read with Section 20(b)(ii)(C) of the NDPS Act and handed down minimum sentence of ten years' imprisonment with fine of Rs.1,00,000/- and in default of payment of fine to undergo sentence of one year's rigorous imprisonment.

As the charge against the appellants was also for offence under Section 8 read with Sections 20 and 29 of the NDPS Act, learned trial Court, upon appreciation of evidence, acquitted them in want of evidence.

The first application for suspension of sentence laid on behalf of appellants was dismissed as not pressed on 20.04.2018.

Pressing the second application for suspension of sentence, it is submitted by learned counsel that co-accused, Jai Das and Bhagyashree, have already been allowed the benefit of suspension of sentence, therefore, sentence of applicant-appellants may also be suspended. It is further submitted by learned counsel that case of the applicant-appellants is not distinguishable from co-accused Jai Das. Learned counsel has also urged flagrant violation of Section 42 of the NDPS Act & its non-consideration by learned trial Court while recording conviction. Lastly, learned counsel, Mr. Bishnoi submits that applicants are in custody for almost four years and there are no other criminal antecedents.

Per contra, learned Public Prosecutor has vehemently opposed the second application for suspension of sentence.

I have bestowed my consideration to the arguments, perused the impugned judgment and also scanned the record of the case.

Accordingly, the second application for suspension of sentence under Section 389 Cr.P.C. is allowed and the sentence awarded by Special Judge, NDPS Act Cases, Jodhpur vide judgment dated 15.02.2018 in Sessions Case No.95/15 is suspended subject to the condition that each of the appellants, (1) Babu Madak S/o Shri Parimal Madak, (2) Sanatar Sarkar S/o Sheetal Sarkar, (3) Vasudev Sarkar S/o Meghnath Sarkar and, (4) Navkumar S/o Shri Ramjeewan, deposits 50% of the fine amount before the learned trial Court and also furnishes personal bonds of Rs.1,00,000/- with two sureties of like amount, including one local surety, to the satisfaction of learned trial Judge for their appearance in this Court on 03.06.2019 and whenever ordered to do so, till disposal of the appeal on the conditions indicated below:

That they will appear before the trial Court in the month of January every year without fail till the appeal is decided.

That if the applicants changes the place of residence, they will give in writing their changed address to the trial Court as well as to the counsel in the High Court.

Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

The learned trial Court shall keep the record of attendance of accused-applicants in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused- applicants were tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purposes relating to pendency and disposal of cases in the trial Court. In case the said accused-applicants do not appear before the trial Court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.