HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of v. For

O R D E R DATE OF PRONOUNCEMENT:- 11 / 02/2025

1. The instant application for suspension of sentences under Section 389 CrPC has been preferred on behalf of the appellant- applicant who has been convicted & sentenced vide judgment dated 24.07.2023 passed by learned Special Judge, NDPS Act Cases, (District & Sessios Judge), Jhunjhunu in Sessions Case No.59/2018 (CIS No.124/2018) as follows:- Offence Section Imprisonment Default sentence 8/18 (c) of NDPS Act 10 Years’ RI with fine of Rs.1,00,000/- In default payment of fine, to further undergo 6 Months’ additional RI

2. Heard learned counsel for the appellant-applicant, learned Public Prosecutor and perused the material available on record

3. Learned Counsel for the petitioner submits that the learned trial has erred in convicting and sentencting the appellant for the (2 of 5) [SOSA-485/2024] aforesaid offences. He submits that the learned trial court has not appreciated the evidence and other material available on record in right and correct perspective. There are major contradictions and discrepancies in the testimonies of the prosecution witnesses and prosecution failed to proves charges against the appellant-applicnt beyond all reasonable doubt. It is contended that PW.6 Abhishek who was the member of police party, in his evidence, disclosed that two polythene containing 1.5 Kgs. Opium were recovered from the car which is totally differnt from the proseuction story. It is argued that indepdent witnesses PW.3 Dinesh Kumar and PW.5 Arvind did not support prosecution case and declared hostile. Besides these two witnesses, all other prosecution witnesses are police peronnel and only on the basis of their evidence, the conviction cannot be recorded. It is also argued that FIR was registered at about 2:00 AM in the night of 29.06.2018 whereas its numbers were mentioned on the memos, prepared at about 11:00 PM of 28.06.2018 and it also creates doubt on the prosecution story. The samples drawn in presence of the jurisdictional magistrate were not sent for chemical analysis. The magistrate in whose presence inventory was prepared on

23.07.2018, was not produced in the witness box. Besides these arguments, it is also contented that the alleged recoverd contraband was not produced physically before the trial court and only FSL report was produced and tendered in evidence. He thus, submits that the appellant has good grounds to challenge the impugned judgment. The appellant was on bail during trial and he did not misuse the liberty of bail granted to him. As per the (3 of 5) [SOSA-485/2024] custody certificate, till 09.08.2024, he has already served 1 year 3 months and 18 days imprisonment whereas final hearing of the appeal is not probable in near future. The total weight of the alleged recovered contraband including packaging material was

2.5 Kgs. and thus, the net weight of the contraband would fall below commerical The appellant does not have any other criminal antencedents under the NDPS Act.

4. Learned Public Prosecutor opposes the submissions advanced by the appellant's counsel. He submits that looking to the qunatity of recovered contraband, execution of sentence may not be suspended. However, on the basis of factual report forwarded by the SHO PS Kotwali, Jhunjhunu, he submits that the appellant does not have any criminal antecedents. He also does not dispute that there is no possibility of early disposal of the appeal.

5. I have given my thoughtful consideration to the submissions advanced at bar and perused the material available on record.

6. Having regard to the totality of facts and circumstaces of the case and considering the arguments advanced by learned counsel for the appellant-applicant as also looking to the fact that till date, the appellnat has already served sentence of nearly 1 year and 10 months; he does not have any crimnal antecedents and final hearing of the appeal is not probable in near future, this Court is satisfied that it is a fit case for suspending execution of sentence passed by the learned trial court and that the appellant has available to him grounds to challenge the impugned judgment. Prolonged incarceration, generally militates against the most (4 of 5) [SOSA-485/2024] precious fundamental right guaranteed under Article 21 of the Constitution of India.

7. In this background, and having regards to the facts and circumstances of the case, I am inclined to suspend the sentences awarded to the appellant. Accordingly, the instant application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentence of imprisonment passed by learned Special Judge, NDPS Act Cases (District & Sessios Judge), Jhunjhunu vide judgment dated 24.07.2023 in Sessions Case No.58/2018 (CIS No.124/2018) against the appellant-applicant Sanjay Kumar S/o Shri Ratan Das 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.1,00,000/- and two sound and solvent sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 11.03.2025 whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

1. That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided. 2. 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. 3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

8. The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant(s) was/were tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal (5 of 5) [SOSA-485/2024] 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(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail. LALIT MOHAN /752 (ANIL KUMAR UPMAN),J