Samrath @APPELLANT@Hash State of Rajasthan & Ors.

Applicant-appellants have laid two separate applications under Section 389 Cr.P.C. for seeking suspension of sentence handed down by Special

Judge, NDPS Cases, Pratapgarh (for short, ‘learned trial Court’) in Special Case No.23/2013 by the impugned judgment dated 04.01.2017.Â

Learned trial Court, by the impugned judgment, has convicted applicant-appellants Samrath and Kanheyalal for offence under Section 8/15 of the

NDPS Act whereas applicant-appellant Mohal Lal is convicted for offence under Section 8 read with Section 25 of the NDPS Act besides offence

under Section 8 read with Section 15 of the NDPS Act. The maximum sentence awarded to all the applicants is fifteen years’ rigorous

imprisonment besides fine.Â

Pressing these applications for suspension of sentence, it is argued by learned counsels for the applicant-appellants that during trial all the applicants

were in custody and by now all of them have remained in custody for more than five years. It is also argued by learned counsels that final hearing

of the appeals is likely to take considerable time and therefore their applications for suspension of sentence merit favourable consideration solely on

the ground of prolonged custody. In support thereof, learned counsel has placed reliance on a decision of Supreme Court in Thana Singh Vs. CBN

:2013(2) SCC 590. Adverting to the merits of the case, it is also submitted by learned counsels that Seizure Officer has flagrantly violated Section

42 of the NDPS Act, inasmuch as, at the relevant point of time, neither he was SHO of the concerned police station nor in-charge of the police

station. In support thereof, learned counsel as referred to the statement of

Seizure Officer, Nathu Lal (P.W.24) wherein he has very candidly admitted that, at the time of search and seizure, Mr. Bhati was posted as SHO of

the concerned police station and in-charge of police station was Sajjan Singh. By relying on the testimony of P.W.24, learned counsels submit that

keeping in view prolonged custody and apparent violation of Section 42 of the NDPS Act, it would not be appropriate to invoke the rigor envisaged

under Section 37 of the NDPS Act. Lastly, learned counsels have contended that even while drawing samples of recovered contraband (poppy

straw), the requisite procedure was not followed and the entire contraband was mixed and thereafter two samples were drawn, which was a vital fact

that has not been taken note of by learned trial Court while convicting all the appellants for offence under Section 8/15(c) of the NDPS Act. In

support thereof, learned counsels have placed reliance on a decision in Netram Vs. State of Rajasthan [2014 (2) WLN 394 (Raj)].

Per contra, learned Public Prosecutor has opposed both these bail applications for suspension of sentence.

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

Having regard to the facts and circumstances of the case and taking into account prolonged custody of the appellants, besides other arguments, I feel

persuaded not to invoke rigor of Section 37 of the NDPS Act.Â

Accordingly, both these applications for suspension of sentence filed under Section 389 Cr.P.C. are allowed and it is ordered that the sentences

passed by learned Special Judge, NDPS Cases, Pratapgarh vide judgment dated 04.01.2017, in Special Sessions Case No.23/2013 against appellant-

applicants, (1) Samrath S/o Shri Kanhaiyalal Meena, (2) Mohanlal Son of Magani Ram Rav, and (3) Kanheya Lal @ Kana Son of Khema Gameti,

they shall remain suspended till final disposal of the aforesaid appeal and shall be released on bail upon each of them furnishing a personal bond in the

sum of Rs.1,00,000/- with two sureties of like amount to the satisfaction of learned trial Judge for their appearance in this Court on 24.05.2018 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 themonth of January every year till the appeal is decided.

That if the applicants change the place ofresidence, they will give in writing their changed addresses to the trial Court as well as to the counsels 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 accusedapplicants were tried and convicted. Â 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.