Allowed

Tarif v. State of Rajasthan

Rajasthan HC9 Jul 2024SOSA/399/2024

Case brief

AI extract

What is this about?

The High Court allowed a second application for suspension of sentence, noting grave error in non-compliance with Section 52-A of the NDPS Act regarding sample collection. Considering the appellant had served over five and a half years of a twenty-year sentence and the appeal's pendency, the sentence was suspended and bail granted.

What did the court decide?

Sentence suspended; bail granted on personal bond of Rs.50,000 with two sureties of Rs.25,000 each.

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

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[2024:RJ-JD:27860]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Misc 2^nd Suspension Of Sentence Application (Appeal) No. 399/2024

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S.B. Criminal Appeal No.352/2023

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Tarif S/o Shri Insan, Aged About 27 Years, R/o Purelal, Post Saray Aana Dev, Police Station Mandhata, District Pratapgarh, District Uttar Pradesh (Lodged In District Jail Pratapgarh)

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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. Ramesh Chandra Purohit For Respondent(s) : Mr. Abhishek Purohit, AGA

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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09/07/2024

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The instant second application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 09.02.2023 passed by the learned Special Judge NDPS Act Cases, Pratapgarh in Sessions Case No.09/2019 whereby he was convicted for the offence under Section 8/15 of the NDPS Act and sentenced to undergo twenty years RI with a fine of Rs.2,00,000/- and in default to further undergo two years R.I.

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His first application for suspension of sentence being S.B. Criminal Misc. Suspension of Sentence Application No.734/2023 was dismissed as not pressed by this Court vide order dated

[SOSA-399/2024]

[2024:RJ-JD:27860]

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14.09.2023. Hence, the instant application for suspension of sentence.

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It is contended on behalf of the applicant 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 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-applicant for releasing the appellant on application for suspension of sentence.

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Heard learned counsel for the parties and perused the material available on record as also the impugned judgment.

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Perusal of the record revealing that on 15.08.2018 Budharam SHO, PS Salamgarh alongwith his team while on patrolling, intercepted a truck bearing registration No.RJ07 GB3744, upper part of which was covered with tripal. During search of the said vehicle, 40 bags of poppy husk were found therein. The total weight of these bags was 625 kg. Thereafter, samples were taken and marked as 1-A to 40-A by the Seizing Officer who sent the same to the FSL for its chemical examination. The accused was arrested and sent to the custody. Admittedly, the inventory though prepared but not in accordance with the mandate provided under Section 52-A of the NDPS Act, no samples were taken in the presence of a Judicial Magistrate. As per the mandate of law, the samples taken in the presence of the Magistrate, ought to have been sent to the FSL for its chemical examination. Having not done so, 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 is placed on a judgment titled as Mohammed Khalid and another Vs. The State of Telangana 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 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 the fact that the very foundation of the conviction is seriously disputed and to a large extent the legal submissions seems to be highly considerable, further some of the questions raised by the learned counsel for the appellant deserves to be appreciated again and if the same will be decided in his favour he may get acquittal; out of total 20 years of sentence he has served more than five and

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half years of the sentence awarded and looking to voluminous pendency of the cases, there is no likelihood of hearing of the appeal on merits in near future, thus, 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 court is of the opinion that it is a fit case for suspending the sentence awarded to the accused appellant.

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Accordingly, the second application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the impugned order of sentence dated 09.02.2023 passed by learned Special Judge NDPS Act Cases, Pratapgarh, in Sessions Case No.09/2019 against the appellant-applicant Tarif S/o Shri Insan, shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail provided he 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 his appearance in this court on 12.08.2024 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

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(1) That he 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 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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(3) Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court.

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[SOSA-399/2024]

The learned trial Court shall keep the record of attendance of the 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 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),J

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56-Mamta/-

Tarif v. State of Rajasthan

Case brief

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Tarif v. State of Rajasthan

Case brief

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