Allowed

Mukesh Kumar S/O Ramdayal v. State of Rajasthan

Rajasthan HC4 Jul 2023SOSA/640/2023

Case brief

AI extract

What is this about?

In pending criminal appeal under NDPS, High Court allowed suspension of sentence application. Court declined to opine on merits of recovery challenges or service of Section 50 notice. Appellants sentenced to 5 years imprisonment.

What did the court decide?

Sentences of Mukesh Kumar and Ramkushal suspended till disposal of appeal on conditions of execution of personal bond and appearance before trial court.

Mukesh Kumar S/O Ramdayal Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Misc. (SOS) Application No. 640/2023

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S.B. Criminal Appeal No.883/2023

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Mukesh Kumar S/o Ramdayal, Aged About 27 Years, R/o Nalkhadi Police Station Sadar Jhalawar District Jhalawar (Raj.)

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Ramkushal S/o Aatmaram, Aged About 35 Years, R/o Nalkhadi Police Station Sadar Jhalawar District Jhalawar (Raj.)

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(At Present Confined In District Jail Jhalawar.)

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----Appellants

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Versus

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State Of Rajasthan, Through P.p.

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----Respondent

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For Appellants(s) : Mr. Rohit Khandelwal For Respondent(s) : Mr. Imran Khan, PP

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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04/07/2023

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Instant application for suspension of sentence is preferred by appellants in pending appeal admitted on 25.04.2023 filed aggrieved from order of conviction and sentence dated 17.04.2023 in Sessions Case No.07/2019 passed by learned Special Judge (NDPS Cases), Jhalawar.

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Learned counsel for the appellants submitted that in this case recovery was effected from motor bike and notice of Section 50 NDPS Act was not served in consonance with law laid down by Hon’ble Supreme Court in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat reported in (2011) 1 SCC 609. He

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[SOSA-640/2023]

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(2 of 4)

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further submitted that recovery officer at the time of seizure had given third option it was not provided under the law and same is not permissible, therefore, entire process was polluted. He further submitted that the evidence on record further suggest that there was no eye witness who corroborated the recovery, therefore, it was a planted case and appellants were falsely implicated. He further submitted that other mandatory provisions of law were also not followed while effecting the recovery, therefore, the entire proceedings are bad in eye of law. While referring discrepancies in the statements of witnesses, he further submitted that learned trial court had failed to notice these discrepancies which were fatal to the case of prosecution. At last he submitted that appellants were on bail during trial and disposal of appeal will take its own time, therefore, they were entitled to be released on bail.

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Aforesaid contentions were opposed by learned Public Prosecutor.

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Heard learned counsel for the appellants and learned Public Prosecutor. Perused the record.

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In this case, on the basis of evidence before the trial court appellant-Mukesh Kumar was sentenced for a period of 5 years with fine of ₹20,000/- under Section 8/18 NDPS Act whereas Ramkushal was sentenced for a period of 5 years and fine of ₹20,000/- was imposed under Section 8/18 NDPS Act and also sentenced to 5 years imprisonment with fine of ₹20,000/- under Section 8/18 read with Section 8/25 NDPS Act. The record further indicate that both appellants were enlarged on bail on 15.12.2018 in S.B. Criminal Misc. Bail Application No.15437/2018 by this court, thus, appellants remained on bail during trial.

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[SOSA-640/2023]

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(3 of 4)

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In this case, a serious objection was raised on recovery process particularly service of notice under Section 50 NDPS Act. After having gone through the evidence of prosecution and also defence along with seizure memo Ex.P1, the defence of prosecution is it was a case of chance recovery and further the compliance of law was ensured in the matter. The notice Ex.P30 and P31 which were said to be given in compliance of Section 50 of NDPS Act were also perused, as regard to aforesaid evidence or documentation is concerned.

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At this stage, it is not possible for the court to opine on merits, therefore, without expressing opinion on merits in totality of facts and circumstances, disposal of appeal will take its own time, therefore application under Section 389(1) of Cr.P.C. is allowed and sentences of accused-appellants- Mukesh Kumar S/o Ramdayal and Ramkushal S/o Aatmaram are suspended till disposal of appeal with the condition that they would executes a personal bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/- each of them to the satisfaction of the learned trial Judge for their appearance in this court on 18.12.2023 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

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

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That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.

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[SOSA-640/2023]

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(4 of 4)

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Similarly, if the sureties change their

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

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Misc. Application stands disposed of.

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(ASHOK KUMAR JAIN),J

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Arun/52

Mukesh Kumar S/O Ramdayal v. State of Rajasthan

Case brief

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Mukesh Kumar S/O Ramdayal v. State of Rajasthan

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