Shyamlal @APPELLANT@Hash State of Rajasthan

Applicant-appellant has laid an application under Section 389 Cr.P.C. for seeking suspension of sentence handed down by Special Judge, NDPS

Cases No.1, Chittorgarh (for short, ‘learned trial Court’) in Sessions Case No.42/14 rendered on 31st of January, 2018.  The learned trial

Court, by the impugned judgement, indicted applicant for offence under Section 8/25 of the NDPS Act and sentenced him for 10 years’ rigorous

imprisonment with fine of Rs.1,50,000/- and in default of payment of fine to undergo default sentence of two years rigorous imprisonment.  The

learned trial Court further ordered that accused-applicant shall be entitled to the benefit of Section 428 Cr.P.C.

Espousing cause of the applicant for suspension of sentence, it is contended by learned counsel that the learned trial Court has seriously erred in

convicting him for offence under Section 8/25 of the NDPS Act. Learned counsel has further argued that there is no iota of evidence that

contraband was found in conscious possession of the applicant and the prosecution has also failed to prove transportation of contraband in the vehicle

with his knowledge.  It is also argued by learned counsel that in fact the vehicle in question was given on contract by the applicant to coaccused

Bhagwana Ram from whose conscious possession contraband was recovered but the learned trial Court without any basis has discarded the

agreement Ex.D/1 to castigate applicant for the offence on mere assumptions.  Learned counsel contends that serious loopholes in the

prosecution evidence to prove applicant’s knowledge about transporting of contraband in the vehicle with his knowledge has per se rendered

findings of the learned trial Court in this behalf vulnerable. Learned counsel has also contended that the learned trial Court has also committed a

grave and serious error of law in invoking Section 103 of the Evidence Act. Lastly, learned counsel has also submitted that during trial applicant

was on bail. In support of his contentions, learned counsel has placed reliance on following judgments:

• Bhola Singh Vs. State of Punjab [2011 Cr.L.R. (SC) 438]

• Rameshwar Lal Sharma Vs. State of Rajasthan through NCB [2017(2) Cr.L.R. (Raj.) 614]

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

that learned trial Court has recorded cogent finding for indicting the applicant for offence under Section 8/25 of the NDPS Act and therefore taking

into account 10 years’ sentence, prayer for suspension of the sentence is liable to be thwarted.

I have bestowed my consideration to the arguments advanced at Bar, perused the materials available on record and also gone through the legal

precedents on which the learned counsel for the applicant has placed reliance.

Upon perusal of the available material and more particularly evidence recorded during trial, it has come to the fore that the vehicle in question was

registered in the name of applicant and he made endeavour for release of the same by laying application under Section 457 Cr.P.C. but then the

evidence of PW10 Bahadurmal, PW12 Rajesh Choudhary and PW20 I.O. Rajendra Singh, on which learned trial Court has relied, are prima facie not

inculpatory so as to record a finding that applicant has permitted use of the conveyance knowingly for commission of an offence under the NDPS Act

by any other person.   All these witnesses have stated in clear and unequivocal terms that applicant Shyamlal is arrested and prosecuted for the

aforesaid offence solely on the basis of his status as registered owner of the vehicle. It is also noteworthy that I.O. PW20 during his cross-

examination has revealed that during investigation he has not been able to collect any evidence to show that contraband was transported in the

conveyance owned by the applicant with his knowledge. Even if it is assumed that there was some lurking doubt about agreement Ex.D/1, in absence

of direct evidence that contraband was transported by the vehicle in question with the knowledge of applicant, prima facie, in my view, these aspects

cannot be totally overlooked even while considering application for suspension of sentence. Therefore, by relying on the legal precedents referred

by the learned counsel for the applicant, I feel inclined to suspend the sentence handed down by the learned trial Court.

Accordingly, the 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 No.1, Chittorgarh, vide judgment dated 31.01.2018, in Sessions Case No.42/2014 against applicant-appellant,

Shyamlal S/o Pyarchand Dhakad, shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail subject to the

condition that he deposits 50% amount of fine imposed by learned trial Court, i.e., Rs.75,000/-, within four weeks and upon his furnishing a personal

bond in the sum of Rs.50,000/- with two sureties of like amount to the satisfaction of learned trial Judge for appearance in this Court on 16.04.2018

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 themonth of January every year till the appeal is decided.

That if the applicant changes the place ofresidence, 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 accusedapplicant 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.

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