S.B.Cr.Misc. Bail App. No. 159/07 v. State of Rajasthan)

HON'BLE MR.H.R.PANWAR, J. Mr. M.C.Bishnoi for the petitioner. Mr. V.R.Mehta Public Prosecutor. Heard learned counsel for the petitioner and public prosecutor for the State. Perused the judgment and order impugned passed by the appellate court as well as by the trial court and the record of the trial court. Learned counsel for the petitioner submits that in the instant case the search and seizure was made by the Head Constable who is not authorized officer in view of the provisions of Section 47 of the Rajasthan Excise Act, 1950 and the Notification dated 9.9.1961 which provides that the State Government hereby orders that the officers of Police and Revenue Department not below the rank specified hereunder shall exercise the powers and perform the duties under the sections mentioned against them; so far as Sections 44, 47 and 67 (1)(a) except in respect of the retail licences granted for sale of liquor under the Act, the authorized officer shall not be below the rank of Sub-Inspector of Police. In this view of the matter, in my view, there is an arguable law point involved in the instant revision petition. 2 Admit. Issue notice. Mr. V.R.Mehta P.P. accepts notice on behalf of State. Heard learned counsel for the parties on the application for suspension of sentence. Having considered the totality of facts and circumstances of the case and the fact that revision petition has already been admitted and as stated by the learned counsel for the petitioner that the search and seizure was made by the Head Constable who is not authorized in view of the Notification dated

9.9.1961 and the fact that the petitioner has already suffered imprisonment of one and half month out of the six months sentence awarded and the revision petition is not likely to come up for hearing in near future, I think it just and proper to suspend the substantive sentence of imprisonment awarded to the accused petitioner-applicant. Accordingly, the bail application filed under Sec. 397/401 Cr.P.C. is allowed and it is ordered that the substantive sentence of imprisonment passed by the trial court and affirmed by the learned Additional Sessions Judge, Bhinmal, district Jalore vide judgment dt. 09.7.2007 in Criminal Appeal No. 36/2006 against petitioner-applicant Hadmatt Singh S/o Keshar Singh shall remain suspended till final disposal of the aforesaid revision provided he executes a personal bond in the sum of Rs. 3 20,000/- with two sureties of Rs.10,000/- each to the satisfaction of the learned trial Judge for his appearance before this court on 18/9/2007 and whenever ordered to do so with the incorporation in the bond that as and when he will shift his place of residence, he will intimate to this Court and his lawyer about his new place of residence. (H.R.PANWAR),J.