High Court bench at Jaipur dismissed a SOS application for suspension of sentence. The court held that despite custody duration, the gravity of possessing 500gm heroin precluded bail. Procedural lapses were reserved for appeal hearing.
Third application for suspension of sentence dismissed.
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[2023:RJ-JP:14643]
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Misc. Third (SOS) Application No. 1705/2022
In
S.B. Criminal Appeal No.219/2019
Kalu Singh S/o Madan Singh, Aged About 25 Years, Resident Of Kurlasi, Police Station Garoth, District Mandsore (Madhya Pradesh) (Presently Lodged In Central Jail, Kota).
----Appellant
Versus
State Of Rajasthan, Through Public Prosecutor.
----Respondent
For Appellant(s) : Mr. Chain Singh Rathore For Respondent(s) : Mr. Riyasat Ali, PP
HON'BLE MR. JUSTICE ASHOK KUMAR JAIN
Judgment / Order
18/07/2023
Instant third application for suspension of sentence is preferred in pending appeal admitted on 06.02.2019 filed aggrieved from order of conviction and sentence dated 18.12.2018 whereby appellant was convicted under Section 8/21 NDPS Act and further sentenced to undergo rigorous imprisonment of 20 years along with fine of ₹2,00,000/-.
Learned counsel for the appellant while referring the inventory Ex.P2 submitted that no independent witnesses were called by the search and seizure officer before effecting recovery from appellant. He further submitted that no notice under Section 50 of NDPS Act was served to the appellant before effecting search of persona of appellant. He further submitted that
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mandatory provisions of NDPS Act were not complied during the entire process. He referred the discrepancies and material contradictions in the statements of prosecution witnesses particularly PW6, PW11 and PW12 to submit that on the basis of these material contradictions, the entire prosecution story fails but learned trial court failed to consider these material contradictions. At last he submitted that appellant is in custody since his arrest and has already undergone a substantial part of sentence, therefore, appellant is entitled to be released on bail.
Aforesaid contentions were opposed by learned Public Prosecutor and he submitted that it was a chance recovery effected in a running train.
Heard learned counsel for the appellant and learned Public Prosecutor. Perused the record.
A perusal of seizure memo Ex.P2 clearly indicated that PW12 Gangasahai Sharma with police team was on 18.09.2017 at 11:45 PM during regular patrolling found a person in general coach of Train No.12964, Mewar Express in suspected situation then after inquiry a suspected substance was found in his bag which in fact was 500 gm smack. Rest of the formalities were completed and charge-sheet was filed against present appellant as per FSL report Ex.P47. The substance was die artikel morphine (heroin) and the quantity was 500 gm.
Having considered the entirety of matter, the contradictions as referred by learned counsel can be considered at final submission of appeal and this is not the stage wherein, we can express our opinion on evidence of prosecution. Similarly, as
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regard to observance of mandatory provision of NDPS Act is concerned. It is case of prosecution that aforesaid recovery was effected from bag in concessions possession of appellant-accused and no recovery was effected from persona of accused. Moreover, the story of prosecution is that it was a chance recovery and the compliance of mandatory provisions were ensured by a search and seizure officer. All these aspects can be considered at final submission in the matter.
The appellant is in custody from his arrest and till now the period of custody is almost 6 years but appellant was found guilty of possessing commercial quantity of heroine, therefore, looking to gravity of aforesaid, I am of considered view that this is not a fit case, wherein appellant can be enlarged on bail.
Hence, third application for suspension of sentence is hereby dismissed.
(ASHOK KUMAR JAIN),J
Arun/20
2 issues framed by the court
Whether the appellant is entitled to a suspension of sentence given the custody period and charge.
Whether procedural lapses in recovery warrant bail at the suspension stage.
1 provisions across 1 enactments
Kalu Singh
State Of Rajasthan
Ashok Kumar Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
