Jagdish @ Babbalu vs State

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

The first application was dismissed as not pressed on 05.03.2018.

Seeking suspension of sentence awarded by learned Additional Sessions Judge, Bhadra, District Hanumangarh (for short, ‘learned trial Court’)

vide its judgment dated 18.01.2018 for offence punishable under Section 8 read with Section 15 & Section 29 of the NDPS Act, it is submitted by

learned counsel that learned trial Court, while indicting the applicant for the charged offences, has not at all cared to examine the laconic procedure

adopted by Seizure Officer for drawal of samples. Learned counsel contends that although as per prosecution, recovery of contraband (poppy straw)

was of huge quantity weighing 626 kg, contained in 35 gunny bags, but while drawing the samples entire bulk of the contraband was mixed and

thereafter samples were drawn. Taking a dig at the procedure adopted for drawal of samples, learned counsel submit that it was ex facie contrary to

Instruction No.1/88 of the Narcotic Control Bureau. Learned counsel would contend that the procedure for drawal of samples had apparent

ramification on the indictment of the applicant for the charged offences but the same is completely eschewed by the learned trial Court. Learned

counsel has urged that its adverse effect was writ large on the gravity of offence, however, it escaped notice of the learned trial Court. In support of

his arguments, learned counsel has placed reliance on a decision in case of Netram Vs. State of Rajasthan [2014 (2) WLN 394 (Raj).] It is submitted

by learned counsel, Mr Gill that samples were drawn on 24.10.2011 but were sent for FSL examination after delay on 31.10.2011 and the report of

FSL was received on 21.08.2013. Learned counsel submits that probably samples were not traceable therefore controlled samples were sent

subsequently which were received by FSL on 11.01.2012 and FSL report was drawn on 29.06.2012. Learned counsel strenuously urged that delay in

sending the samples was not at all considered by the learned trial Court while indicting the applicant. Lastly, learned counsel contends that out of

maximum sentence of ten years’ rigorous imprisonment with fine of Rs.1,00,000/-, applicant has already served sentence for almost five years and

three months and, therefore, the factum of prolonged custody also requires consideration as final hearing of the appeal is unlikely in near future.

Per contra, learned Public Prosecutor has opposed the application for suspension of sentence. It is also argued by learned Public Prosecutor that

contraband poppy straw recovered in the matter was umpteen times higher than commercial quantity, therefore, Section 37 of the NDPS Act is

clearly attracted.

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

Having regard to the facts and circumstances of the case and taking note of the legal precedent relied upon by learned counsel for the applicant and

delay in sending the samples for FSL examination, I record my satisfaction about requirements of Section 37 of the NDPS Act. However, while

refraining to make any comments on merits, I feel persuaded to accept this second application for suspension of sentence.

Accordingly, the second application for suspension of sentence under Section 389 Cr.P.C. is allowed and the sentence awarded by Additional

Sessions Judge, Bhadra, District Hanumangarh, vide judgment dated 18.01.2018 in Sessions Case No.19/2016, is suspended subject to the condition

that appellant, Jagdish @ Babbalu S/o Om Prakash, deposits 50% of the fine amount within four weeks and also furnishes personal bond of

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

19.08.2019 and whenever ordered to do so, till disposal of the appeal on the conditions indicated below:

That he will appear before the trial Court in the month of January every year without fail 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.