Allowed

Tikma Ram v. State

Rajasthan HC25 Oct 2018SOSA/961/2018

Case brief

AI extract

What is this about?

This order allows a second application for suspension of sentence under Section 389 CrPC. The High Court suspended the appellant's 15-year rigorous imprisonment pending final appeal, citing prolonged custody as a plausible ground, while reserving other procedural objections for final hearing.

What did the court decide?

Sentence suspended till final disposal of appeal; release on bail subject to depositing part of fine and personal bond.

Tikma Ram Vs State — Narcotics (NDPS) | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Suspension Of Sentence(Appeal) No. 961/2018

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S.B. Criminal Appeal No. 843/2017

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Tikma Ram S/o Sh. Bhera Ram Ji, Aged About 32 Years, B/c Jat, Khodala, P.S. Shiv, Distt. Barmer (Raj) At Present R/o Smadari Road, Balotra, Distt. Barmer (Lodged At Central Jail, Jodhpur)

----Petitioner

Versus

State, Through PP

----Respondent For Petitioner(s) : Mr. Mahesh Bora, Sr. Advocate with Mr. Saransh Vij. For Respondent(s) : Mr. O.P. Rathi, Public Prosecutor.

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HON'BLE MR. JUSTICE P.K. LOHRA

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Order

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25/10/2018

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Accused-appellant has laid this second application under Section 389 Cr.P.C. seeking suspension of sentence handed down by learned trial Court, while convicting him for offence under Section 8 read with Section 18 of the NDPS Act. The learned trial Court, by impugned judgment dated 22.05.2017, convicted the appellant for aforementioned offence and handed down sentence of 15 years’ rigorous imprisonment with fine of Rs.1,50,000/-, and in default of payment of fine to undergo sentence for one year’s rigorous imprisonment.

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At the outset, while pressing this second application for suspension of sentence, it is argued by learned Senior Counsel

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(2 of 5)

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that sentence of appellant is liable to be suspended solely on the ground of prolonged custody inasumuch as he has already undergone sentence for five years and ten months. In support thereof, learned counsel has placed reliance on decisions of the Supreme Court in cases of Thana Singh V/s. Central Bureau of Narcotics [(2013) 2 SCC 603] and Mayuresh Nandkumar Purohit Vs. Kaushik Manna & Anr. [2018 Cr.L.R.(SC) 251]. Alternatively, while touching merits of the case, it is submitted by learned Senior Counsel that Seizure Officer has not only searched residential premises of appellant but further the appellant was subjected to personal search but notice under Section 50(1) of the NDPS Act served on him in this behalf contained third option of the Seizure Officer himself, therefore, the entire recovery of the contraband was clearly vitiated. It is also argued by learned Senior Counsel that this aspect has not been examined in right perspective by learned trial Court. In support thereof, learned Senior Counsel has placed reliance on a decision in case of State of Rajasthan V/s. Parmanand [(2014) 5 SCC 345]. It is also submitted by learned Senior Counsel that though recovery of contraband in the matter was 8 kg opium milk, which is higher than commercial quantity, but the samples collected by the Seizure Officer were not dispatched/sent for FSL examination within 72 hours. Learned Senior Counsel has further argued that not sending the samples to laboratory for examination within the stipulated period is a glaring example of gross violation of Clause 1.13 of the Standing Order No.1 of 88, issued by NCB. In support thereof, learned Senior Counsel has placed reliance on a decision of Supreme Court in case of Mohanlal Vs. State of Punjab [2018 (9) SCALE 663] . Learned Senior Counsel would contend that this

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(3 of 5)

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vital aspect too was not considered by the learned trial Court while indicting the appellant. Lastly, learned Senior Counsel has submitted that two samples were drawn of 50 gm each but during FSL examination it revealed that in one of the samples quantity increased to 53 gms whereas the quantity of another sample decreased to 38 gms which is a clear indication that there was tampering with the samples and the samples did not reach FSL in self-same condition. In this regard, learned Senior Counsel has placed reliance on a decision in the case of Suresh Chandra Vs. State of Rajasthan [RLW 2002(1) Raj 25].

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Per contra, learned Public Prosecutor has vehemently opposed the application for suspension of sentence. It is contended by learned Public Prosecutor that there is no change much less substantial change in the circumstances after rejection of first application for suspension of sentence. Learned Public Prosecutor has also argued that the recovery of contraband from the appellant is higher than commercial quantity, therefore, rigor of Section 37 is clearly attracted.

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I have bestowed my consideration to the arguments advanced at Bar and also perused the judgments, on which learned Senior Counsel for the appellant has placed reliance, besides available material.

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There remains no quarrel that recovery of the contraband in the matter is higher than commercial quantity but then the prolonged custody of appellant cannot be completely ignored. It is also noteworthy that appeal of the appellant is of the year 2017

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(4 of 5)

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[SOSA-961/2018]

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and its final hearing may not be possible in near future, therefore, at this stage, the prolonged custody of the appellant has furnished a plausible ground for favourable consideration of his application for suspension of sentence. My this view is also fortified by the judgments referred to supra. Moreover, the other issues raised by learned Senior Counsel concerning violation of Section 50 of the NDPS Act and belated dispatch of samples to laboratory, suffice it to observe that these issues require consideration at the time of final hearing. Be that as it may, at this stage, considering the material available on record, prima facie, these issues can be objectively examined by the Court for extending benefit of suspension of sentence to the appellant while toning down rigor of Section 37 of the NDPS Act.

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In view of foregoing discussion, this second application for suspension of sentence is allowed and it is ordered that the sentence passed by learned Special Judge, NDPS Cases, Balotra, District Barmer, vide judgment dated 22.05.2017, in Sessions Case No.21/2016, against appellant-applicant, Tikma Ram S/o Shri Bhera Ram Ji, 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 like amount to the satisfaction of the learned trial Judge for his appearance in this Court on 26.11.2018 and whenever ordered to do so till disposal of the appeal, on the following other conditions:-

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(5 of 5)

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[SOSA-961/2018]

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That he will appear before the trial Court in the month of January every year till the appeal is decided.

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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.

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Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

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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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Twinkle Singh/

Tikma Ram v. State

Case brief

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Tikma Ram v. State

Case brief

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