Allowed

Suwa Lal v. State of Rajasthan

Rajasthan HC4 Apr 2024SOSA/166/2024

Case brief

AI extract

What is this about?

This High Court allowed a second application for suspension of sentence under Section 389 CrPC for two appellants convicted under the NDPS Act. The court noted significant defects regarding non-compliance of Section 52-A of the NDPS Act and adhered to Supreme Court precedents equating prolonged appeal pendency with a ground for bail, leading to suspension for more than five years served.

What did the court decide?

Suspending the sentence awarded and releasing the appellants on bail subject to execution of a personal bond of Rs.50,000/ with sureties.

Suwa Lal Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2024)

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[2024:RJ-JD:15999]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 166/2024

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S.B. Criminal Appeal No.781/2022

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Suwa Lal S/o Mangi Lal, Aged About 51 Years, B/c Caste Vaishnav, R/o Jaswantabad, P.s. Merta City, Dist. Nagaur. (At Present Lodged In Central Jail, Ajmer)

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp

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----Respondent

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Connected With

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S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 48/2024

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S.B. Criminal Appeal No.781/2022

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Kalu Das S/o Tulsi Das, Aged About 51 Years, B/c Vaishnav R/o Rawo Ka Bas Lambiya Ps Anandpur Kalu Dist. Pali Raj. (At Present Lodged In Central Jail Ajmer)

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp

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----Respondent

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For Petitioner(s) : Mr. M.L. Bishnoi For Respondent(s) : Mr. S.K. Bhati, PP

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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04/04/2024

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The instant second applications for suspension of sentence has been moved on behalf of the applicants in the matter of

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judgment dated 12.05.2022 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No.19/2016 whereby they were convicted under Section 8/15 of the NDPS Act and sentenced to suffer 10 years rigorous imprisonment along with a fine of Rs.1,00,000/- and in default to further undergo six months rigorous imprisonment.

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The case of the prosecution is that on 03.05.2016, Mahaveer Prasad Meena, SHO, Police Station Bigod received a secret information regarding transportation of the contraband by some accused upon which he went to the schedule place where a vehicle was intercepted in which the appellants Sua Lal and kalu Ram were found besides the other accused Bhagwan and Shankar Lal. It is stated that five gunny bags were recovered from the vehicle which were carried by the appellants. It was suspected that the five gunny bags were containing poppy husk. Each bag was having 21 kg poppy husk in it and the total weight of the recovered contraband was 105 kg. The samples were taken from each bag and were marked as ‘A-1’ to ‘E-1’. The accused were arrested; the contraband was seized and after usual investigation, they were charge-sheeted for commission of an offence under Section 8/15 of the NDPS Act.

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It is contended on behalf of the applicants that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and thus, reached at an erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this court being the first appellate Court. He

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submitted that the Seizing Officer collected the samples from the spot and sent to the FSL for its examination thus, Section 52-A of the NDPS Act has not been complied with. He placed reliance on the Petition(s) for Special Leave to Appeal (Crl.) No(s) 2893/21 titled Manohar Lal Ainani Vs. State of Rajasthan & Anr. , wherein it was held vide order dated 15.11.2021 that looking to the prolonged custody period of the petitioner, bail shall be granted to him in that matter. In another landmark judgment of Satender Kumar Antil vs. Central Bureau of Investigation and Ors. reported in AIR 2022 SC 3386 , the aforesaid aspect has been reiterated. Hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted.

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Per contra, learned public prosecutor has vehemently opposed the prayer made on behalf of the accused-applicants for releasing the appellants on applications for suspension of sentence.

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Heard learned counsel for the parties and perused the material available on record.

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It is emanating from the record that after a full-fledged trial, the above named accused were convicted and sentenced and their appeals are pending before this Court after admitting the same, however, there seems no possibility of hearing of the appeal in a near future.

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There is a serious plea of the defence with regard to noncompliance of the mandatory provisions Sections viz., 42, 55 &

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52 of the NDPS Act. The samples of the contraband were taken from the gunny bags at the spot by the police officer and marked as ‘A-1’ to ‘E-1’ and were sent to the FSL for chemical examination. It is evident from the FSL report dated 26.08.2016 which is marked as Ex.P/95 that the samples sent for the chemical examination were the samples which were taken at the spot from recovered articles. Indisputably, no samples were taken in the presence of the Magistrate. Having not done so, thus, the Investigating Agency has committed a grave error and as such, the FSL report would not help the case of the prosecution. In this regard reliance can be placed on a judgment titled as Mohammed Khalid and another Vs. The State of Telangana

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passed by Hon’ble the Supreme Court in Criminal Appeal No(S). 1610 Of 2023 dated 01.03.2024 wherein it was held that since no proceedings were undertaken for preparing of inventory and drawings of samples as per Section 52-A of NDPS Act, thus, the FSL was considered to be a waste and was not considered worthy of being read in evidence on the basis of this inter alia other aspects, Hon’ble the Apex Court acquitted the appellants of all charges. The relevant paragraph of the above judgment is reproduced as under:-

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“22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P11) is nothing but a waste paper and cannot be read in evidence.”

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Hon’ble the Supreme Court has propounded guidelines on

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the subject of bail in the case of Satender Kumar Antil (supra) and has held as under:-

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“41. Sub-section (2) has to be read along with Sub-section (1). The proviso to Sub-section (2) restricts the period of remand to a maximum of 15 days at a time. The second proviso prohibits an adjournment when the witnesses are in attendance except for special reasons, which are to be recorded. Certain reasons for seeking adjournment are held to be permissible. One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail . This we hold so notwithstanding the beneficial provision Under Section 436A of the Code which stands on a different footing. 42. ……

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43. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available Under Section 436A would also be considered, the Courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant.

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44. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred Under Section 436A of the Code among other factors ought to be considered for a favourable release on bail.”

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(Emphasis Supplied)

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Considering the overall facts and circumstances of the case and looking to the fact that as some of the questions raised by the learned counsel for the appellants deserves to be appreciated again and if the same will be decided in their favour, they may get acquittal; out of total 10 years of sentence they have served more than 5 years and looking to voluminous pendency of the cases, there is no likelihood of hearing of the appeal on merits in near future. While 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

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court is of the opinion that it is a fit case for suspending the sentence awarded to the accused appellants.

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Accordingly, the second applications for suspension of sentence filed under Section 389 Cr.P.C. are allowed and it is ordered that the impugned order of sentence dated 12.05.2022 passed by learned Special Judge, NDPS Act Cases, Bhilwara in Sessions Case No.19/2016 against the appellant-applicants Suwa Lal S/o Mangi Lal and Kalu Das S/o Tulsi Das shall remain suspended till final disposal of the aforesaid appeal and they shall be released on bail provided each of them executes a personal bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/each to the satisfaction of the learned trial Judge for their appearance in this court on 08.05.2024 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

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(1) That they will appear before the trial Court in the month of January of every year till the appeal is decided.

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(2) That if the applicants changes the place of residence, he will give in writing their changed address to the trial Court as well as to the counsel in the High Court.

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(3) Similarly, if the sureties change their addresses, 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 the accused-applicants 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

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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.

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(FARJAND ALI)

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409-Mamta/-

Suwa Lal v. State of Rajasthan

Case brief

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Suwa Lal v. State of Rajasthan

Case brief

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