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

: Mr. Amit Punia, PP ----Petitioner ----Respondent HON'BLE MR. JUSTICE ANIL KUMAR UPMAN O R D E R DATE OF PRONOUNCEMENT:- 28/01/2025

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 16.03.2024 passed by learned Special Judge, NDPS Cases, Jaipur Metropolitan-First in Sessions Case No.26/2022 as follows:- Offence Section Imprisonment Default sentence 8/21 of NDPS Act 12 Years’ RI with fine of Rs.1.25,000/- 8/22 of NDPS Act 12 Years’ RI with fine of Rs.1.25,000/- In default payment of fine, to further undergo 1 Year’s additional RI In default payment of fine, to further undergo 1 Year’s additional RI Both the sentences would run concurrently (2 of 5) [SOSA-605/2024]

2. Heard learned counsel for the appellant-application, 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 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. He argues that in the present matter, there is non-compliance of the provisions of Sections 42, 50 and 52A of the NDPS Act. Learned counsel contends that the information received from secret informer was not reduced in writing and same was not sent to the higher police officers. He also argues that the proseuction has also failed to prove beyond all reasonable doubt that compliance of Section 50 of the NDPS Act was done properly as the notice under Section 50 of the NDPS Act was not having signature of the appellant which creates doubt on the prosecution story. Apart from above, samples from the alleged recovered substances was not done in presence of the jurisdictional magistrate in terms of provisions of Section 52A of the NDPS Act. Inventory was prepared after four months of the alleged recovery and thus, appellant has good grounds to challenge the impugned judgment. Till date, the appellant has alredy served three years' imprisonment. The appellant does not have any other criminal antencedents under the NDPS Act and there is no likelihood of early hearing of the appeal. The appellant has strong grounds for assailing the impugned Judgment. (3 of 5) [SOSA-605/2024]

4. Learned Public Prosecutor opposes the submissions advanced by the appellant'scounsel. However, he too does not dispute the fact that till date, the appellant has remained in custody in this case for 3 years. He does not have any criminal antecedents. There is no possibility of early disposal of the appeal.

5. I have given my thoughtful consideration to the submissions advanced at bar.

6. Having regard to the totality of facts and circumstaces of the case; considering the arguments advanced at bar and more particularly, the procedure adopted with respect to reducing writing of information received from motbir in terms of Section 42 of the NDPS Act as also qua notice under Section 50 of the NDPS Act, this Court is satisfied that the appellant has available to him strong grounds for assailing the impugned Judgment of conviction. As per the factual report of the learned Public Prosecutor, there is no other case registered against him. Till date, the appellant has served three years imprisonment. There are bleak chances of early disposal of the appeal. Prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the embargo contained under Section 37 of the NDPS Act. As a consequence, I am of the firm opinion that conditions of Section 37 of the NDPS Act are duly satisfied.

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 (4 of 5) [SOSA-605/2024] and it is ordered that the sentence of imprisonment passed by learned Special Judge, NDPS Act Cases, Jaipur Metro-I, vide the judgment dated 16.03.2024 in Sessions Case No.26/2022 (CIS No.26/2022) against the appellant-applicant Banshidhar Yadav S/o Shri Birdichand Yadav shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail, provided he desposits the amount of fine and 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 27.02.2025 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 (5 of 5) [SOSA-605/2024] 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(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