Babulal @ Jagdish And Ors vs State Of Rajasthan

Accused-appellants has laid this second application for suspension of sentence under Section 389 Cr.P.C.

Both the accused-appellants were convicted by learned trial Court for offence punishable under Section 8 read with Section 15 of the NDPS Act and handed down sentence of 12 years rigorous imprisonment with fine of Rs.1,20,000/- and in default of payment of fine to undergo sentence of one year's rigorous imprisonment.

Arguing on this application for suspension of sentence, it is submitted by learned counsel that appellants are in custody for nearly three years. It is also submitted by learned counsel that although recovery of contraband in the matter is higher than commercial quantity but at the time of drawl of samples, the Seizure Officer has not adhered to Standing Instruction No.1/88 inasmuch as entire contraband was mixed and thereafter from that mixture samples were drawn which were sent for FSL examination. Learned counsel elaborating his submission in this behalf has submitted that this laconic procedure of drawl of sample was not at all examined by the learned trial Court while indicting the appellants for offence punishable under Section 8 read with Section 15(c) of the NDPS Act. In support of his submission, learned counsel has placed reliance on a decision of Supreme Court in the case of Union of India V/s. Bal Mukund & Ors. [2009 Cri.L.J. 2407]. Learned counsel has also relied upon a decision in the case of Netram V/s. State of Rajasthan [2014 (1) Cr.L.R. (Raj.) 163. Learned counsel has further relied upon the bail orders passed by Coordinate Bench of this Court in Moolaram V/s. State (S.B. Cr. Misc. Bail No.1506/2019 decided on 05.02.2019) and Jetha Ram V/s. State (S.B. Suspension of Sentence (Appeal) No.1354/2018 decided on 19.02.2019) while considering the issue about patent lacuna in drawl of samples. It is also submitted by learned counsel that both the appellants have no other criminal antecedents.

Per contra, learned Public Prosecutor has opposed the application. It is submitted by learned Public Prosecutor that the contraband recovered in the matter is umpteen times higher than commercial quantity, and therefore, rigor of Section 37 of the NDPS Act is clearly attracted.

I have given my consideration to the arguments and the decisions relied upon by the learned counsel for the appellants.

Having regard to the facts and circumstances of the case, I feel persuaded to accept this application for suspension of sentence.

Accordingly, the second application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentence passed by learned Special Judge, NDPS Cases, Pratapgarh, vide judgment dated 02.04.2018, in Sessions Case No.38/2016, against appellants (1) Babulal @ Jagdish S/o Shri Laxman Gwala (Hinwar) and (2) Banshi Lal S/o Shri Laxman Ji Gwala (Kachwaha), shall remain suspended till final disposal of the aforesaid appeal and they shall be released on bail subject to the condition that they deposits 50% of fine amount imposed by learned trial Court within four weeks from today and each of them furnishes a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each by both of them to the satisfaction of learned trial Judge for their appearance in this Court on 15.04.2019 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 till the appeal is decided.

That if the applicants change 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.