The High Court suspended the sentence and granted bail to a petitioner convicted under the NDPS Act, noting discrepancies in reported weight of contraband that raised doubts about whether the quantity crossed the commercial threshold.
Sentence suspended and bail granted on personal bond with sureties pending final disposal of the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[2023:RJ-JD:38079]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 678/2023
Sher Khan S/o Shri Jamdad Khan, Aged About 27 Years, R/o Kanora, Police Station Ranthanjana, District Pratapgarh. (Presently Lodged In District Jail, Pratapgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Ramesh Purohit For Respondent(s) : Mr. Mahipal Bishnoi, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
03/11/2023
[2023:RJ-JD:38079]
[SOSA-678/2023]
(2 of 5)
There are several flaws and laches in the case of the prosecution. He submits that there are major discrepancies in the weight of the alleged recovered contraband recorded at different stages; at the time of recovery; when the inventory was prepared by the Judicial Magistrate; as well as when it was weighed in court during trial on 05.05.2022 which cast serious doubts regarding the actual weight of the contraband. He also submits that during the time of alleged recovery the weight of polythene bag, in which the contraband was kept, was not measured and subtracted from the total weight of the alleged contraband and if the same would have been done, then the contraband would have measured less than 250 grams which is below the commercial quantity. Hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted.
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[SOSA-678/2023]
(3 of 5)
sugar is above the commercial quantity demarcated for it. As per the seizure memo the total weight of the alleged recovered contraband is 260 grams out of which two samples of 10 grams each were taken for FSL Examination, so the remaining weight of the alleged contraband is 240 grams. On 20.07.2017, the inventory was prepared by the Judicial Magistrate and a perusal of the same reveals that the total weight of the contraband contained in the polythene was 235 grams excluding the weight of samples but the total weight of the contraband contained in the polythene as per the seizure memo is 240 grams. Now, it is pertinent to note that the aggregate weight of the contraband as per inventory was calculated without subtracting the weight of the polythene and the aggregate as mentioned above is touching the upper threshold of the commercial quantity demarcated for this specific contraband in the statute, thus, it is natural to suspect that if the weight of the polythene would have been subtracted then the aggregate as per the inventory might not have qualified in the category of commercial quantity and the possibility of the same happening cannot be ruled out at this stage. Additionally, there is serious discrepancy between the total weight reflecting in the inventory and the total weight reflecting in the seizure memo albeit the weight of the samples was subtracted before calculating the total weight while preparing the inventory but even if the total weight of the samples is added to the weight of the contraband in the inventory, it falls short of the total weight as reflected in the seizure memo by a substantial amount, thus, putting another question mark upon the genuineness of the allegations. While
(4 of 5)
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[SOSA-678/2023]
refraining from passing any comments on the niceties of the matter and the defects of the prosecution as the same may put an adverse effect on hearing of the appeal, this court is of the opinion that it is a fit case for suspending the sentence awarded to the accused appellant.
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(5 of 5)
applicant 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 purpose 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.
(FARJAND ALI),J
69-Mamta/-
3 issues framed by the court
Whether substantial flaws in weight discrepancy and lack of commercial quantity proof justify suspension of sentence pending appeal.
Whether prohibition on anticipatory bail or stay of proceedings under Sections 32-A and 37 of NDPS Act applies.
Whether the appellations' contentions regarding discrepancies in contraband weighing warrants suspension of sentence.
3 provisions across 2 enactments
Sher Khan S/o Shri Jamdad Khan
State Of Rajasthan
FARJAND ALI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
