Kulwant Ram vs State Of Rajasthan

Applicant-appellant has laid this second application for suspension of sentence under Section 389 Cr.P.C. The learned trial Court, by the impugned judgment convicted the applicant-appellant for offence punishable under Section 8 read with Section 15 of the NDPS Act and handed down 10 years' imprisonment for each offence with fine of Rs.1,00,000/-, and in default of payment of fine to undergo sentence for one year's rigorous imprisonment.

The first application for suspension of sentence was dismissed as not pressed on 5th of February, 2018 with liberty to renew prayer after six months.

Espousing cause of the applicant-appellant for suspension of sentence, it is contended by learned counsel that appellant remained in custody during trial for a considerable period and by this time his custodial period has exceeded more than five years. Learned counsel further submits that final hearing of the appeal is unlikely in new future. Adverting to the merits of the case, it is also contended by the learned counsel that during search and seizure of contraband, allegedly recovered from the appellant, besides truck transporting contraband, he too was subjected to personal search, and notice in this behalf served on him under Section 50 of the NDPS Act is infirm having direct ramification on entire search and seizure proceedings. Elaborating his submissions, learned counsel has urged that in the notice under Section 50, served on the applicant-appellant, the Seizure Officer has incorporated third option of himself to carry out search and seizure, which is dehors the mandatory provisions of Section 50 of the NDPS Act. In support thereof, learned counsel has placed reliance of a decision of Supreme Court in State of Rajasthan V/s. Parmanand [(2014) 5 SCC 345]. It is also submitted by learned counsel that to prove search and seizure, despite availability of umpteen time, no endeavour was made by the investigating agency to procure independent witnesses but this aspect has not at all been considered by the learned trial Court. He, therefore, submits that non-compliance of Section 100(3) & (4) Cr.P.C. is clearly apparent which has prima facie vitiated the search and seizure. In support of his contention, learned counsel has placed reliance on a decision of this Court in Ali Khan Vs. State of Rajasthan [2013 (4) Cr.L.R. (Raj.) 1920] and Supreme Court decision in State of Punjab Vs. Paramjit Singh [2015 (2) Drugs Cases (Narcotics) 284]. It is contended by learned counsel that there is no criminal antecedents of the applicant-appellant barring his involvement in the present case. As regards prolonged custody of the applicant-appellant, for granting him indulgence in the matter of suspension of sentence, learned counsel has placed reliance on following judgments:

• Thana Singh V/s. Central Bureau of Narcotics [(2013) 2 SCC 603]

• Mayuresh Nandkumar Purohit Vs. Kaushik Manna & Anr. [2018 Cr.L.R.(SC) 251].

Per contra, learned Public Prosecutor has vehemently opposed the application for suspension of sentence. It is submitted by learned Public Prosecutor that recovery of huge quantity of contraband in the matter, which is umpteen times higher than commercial quantity, is sufficient to decline application for suspension of sentence by invoking embargo under Section 37 of the Act.

I have bestowed my consideration to the arguments and perused the legal precedents.

Having regard to the facts and circumstances of the case and considering very vital fact that applicant-appellant has already undergone half of the sentence awarded by learned trial Court, besides other grounds urged on his behalf, it would be just and appropriate to grant indulgence to him in the matter of suspension of sentence.

Accordingly, the application for suspension of sentence is allowed and it is ordered that the substantive sentence awarded by learned Special Judge, NDPS Cases, Bhilwara, vide judgment dated 05.02.2016, in Sessions Case No.14/2014, against appellant-applicant, Kulwant Ram S/o Dalip Ram, shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail subject to the condition that he deposits fine of Rs.1,00,000/- within four weeks and furnishes a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000 each (including one local surety) to the satisfaction of the learned trial Judge for his appearance in this Court on 25.03.2019 and whenever ordered to do so till disposal of the appeal, on the following other conditions:-

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.