Radheyshyam vs State

Appellant has preferred this second application for suspension of sentence awarded by learned trial Court while indicting him for offence punishable under Section 8 read with Section 15(c) of the NDPS Act.

The learned trial Court, by impugned judgment dated 24.04.2018, sentenced appellant for punishment of 12 years' rigorous imprisonment with exemplary fine of Rs.4,00,000/- and in default of payment of fine to undergo sentence for 2 years' rigorous imprisonment.

The first application for suspension of sentence of appellant was dismissed on 06.07.2018 as not pressed with liberty to renew the prayer after four months.

Arguing on this second application, it is submitted by learned counsel that although, learned trial Court in impugned judgment has recorded finding that personal search of appellant is not reflected during investigation as per recovery memo, but in fact the materials available on record speak volumes about the fact that the appellant was subjected to personal search. It is also argued by learned counsel for the appellant that the recitals contained in recovery memo are also clear and explicit, showing personal search of the accused appellant and consequent violation of Section 50 of the NDPS ACt. He, therefore, urged that the finding recorded by the learned trial Court in Para 14 of judgment is contrary to the materials available on record. It is further argued by learned counsel that prima facie conviction recorded by the learned trial Court is not sustainable because it was a clear case of non-production of "Muddamaal" before the trial Court and patent defect in proceedings undertaken against the appellant under Section 52-A of the NDPS Act. It is also submitted by learned counsel that in the wake of all these infirmities, it is a fit case wherein at this stage the Court can very well tone down the rigour envisaged under Section 37 1(b)(ii) of the NDPS Act.

Lastly, learned counsel submits that appellant has already remained in custody for almost 3 years and final hearing of the appeal in near future is not possible, besides urging that there is no other criminal antecedent of the appellant.

Per contra, learned Public Prosecutor has vehemently opposed this second application for suspension of sentence and submitted that considering the serious delinquency of appellant, which has already been adjudicated by learned trial Court, Section 37 of the NDPS Act is clearly attracted in the instant case. In the alternative, learned Public Prosecutor has also argued that at least some condition should be imposed in the matter against the appellant while releasing him on bail or suspending his sentence.

I have bestowed my consideration to the arguments advanced at Bar, more particularly, the issues which are vociferously canvassed pertaining to alleged violation of Section 50 of the NDPS Act and non-production of "Muddamaal".

Having regard to the facts and circumstances of the case, this second application for suspension of sentence is allowed, subject to certain conditions.

Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by learned Special Judge, N.D.P.S. Cases No.1, Chittorgarh, vide judgment dated 24.04.2018, in Session Case No.46/2016 against applicant-appellant, Radheyshyam S/o Kanhaiyalal Dhakad, shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail subject to the condition that he shall deposit Rs.1,50,000/- of the fine amount before learned trial Court within four weeks and upon executing a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for his appearance in this Court on 25.02.2019 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 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.