Dashrath vs State Of Rajasthan

Accused-appellant, Dashrath, has laid this third application for suspension of sentence under Section 389 Cr.P.C. By the instant application, the

accused-applicant is seeking suspension of sentence awarded by Special Judge, NDPS Cases, Pratapgarh, by its judgment dated 28th of August,

2017.

First application for suspension of sentence was dismissed as not pressed on 22nd of January, 2018 and second too was dismissed as not pressed on

16th of August, 2018.

Pressing this third application for suspension of sentence, it is submitted by learned counsel that as per prosecution case, applicant was found in

possession of contraband (opium) weighing 3.5 kgs on 8th of May, 2015 and on the same day samples were drawn, but the samples were dispatched

for FSL examination on 14th of May, 2015 and received by the FSL on 15th of May, 2015. Learned counsel also submits that by not sending the

samples to FSL within 72 hours, the Seizure Officer violated Standing Order No.1/88 issued by Narcotics Control Bureau, more particularly its clause

1.13. Learned counsel contends that it was necessary to send the samples for examination within 72 hours to avoid any legal objection. Learned

counsel submits that this sort of omission on the part of the prosecution was examined by the Supreme Court in Mohan Lal V/s. State of Punjab [AIR

2018 SC 3853] and the Court opined that investigation in cases relating to NDPS Act has to be carried out fairly in adherence of Art.21 of the

Constitution. It is also pointed out that the Court has deprecated whimsical process of investigation. Learned counsel further submits that this aspect

has not at all been considered by the learned trial Court while indicting and sentencing the applicant-appellant for the charged offence.

It is also argued by learned counsel that the prosecution has flagrantly violated Section 42 of the NDPS Act inasmuch as there was prior information

about applicant-appellant carrying contraband, as is admitted by Investigating Officer P.W.13 Govind Singh, but the requisite information was neither

jotted down in Roznamcha, nor it was conveyed to higher officer.

Learned counsel has further submitted that although contraband was recovered from the bag attached with motorcycle but the applicant-appellant was

also subjected to personal search as admitted by Seizure Officer P.W.12, Ratan Singh, however indisputably before making personal search of the

applicant-appellant no notice as mandated under Section 50 of the NDPS Act was given to him. In support of his argument, learned counsel has

placed reliance on a decision of Supreme Court in State of Rajasthan Vs. Parmanand [(2014) 5 SCC 345.] Lastly, learned counsel contends that the

applicant has already undergone sentence for almost four years and there is no other criminal antecedent of him showing involvement for offence

under the NDPS Act. He has, therefore, urged that the sentence awarded to the applicant-appellant may be suspended.

Per contra, learned Public Prosecutor has opposed the prayer. It is argued that the contraband recovered in the matter is above commercial quantity,

therefore, Section 37 of the NDPS Act is clearly attracted.

I have bestowed my consideration to the arguments advanced and perused evidence and other materials available on record.

Having regard to the facts and circumstances of the case, while recording my satisfaction about requirement of Section 37 of the NDPS Act and

refraining to make any comment on merits of the case, I feel persuaded to accept this application for suspension of sentence.

Accordingly, the third 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 28.08.2017, in Special Sessions Case No.25/2015, against appellant-applicant,

Dashrath S/o Shri Mangi Lal, shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail subject to the condition

that he deposits entire fine amount slapped against him by the learned trial Court within four weeks from today, and also furnishes a personal bond in

the sum of Rs.1,00,000/- with two sureties of like amount to the satisfaction of the learned trial Judge for his appearance in this Court on 26.08.2019

and whenever ordered to do so till disposal of the appeal with further conditions indicated below:-

That he will appear before the trial Court in the month of January every year till the appeal is decided.

That if the applicant changes the place of residence, he will give in writing his 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-applicant in a separate file. Such file be registered as Criminal Misc. Case

related to original case in which the accused-applicant was 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 applicant does not appear before the trial Court, the learned trial Judge shall report the matter to the High Court for cancellation

of bail.