LAKHPAT SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard learned counsel for the accused-appellant and learned Public Prosecutor on the application for suspension of sentence and perused the judgment impugned dtd. 15/6/2022 passed by Special Judge, NDPS Act cases No.1 Kekri District Ajmer in Sessions Case No.15/2010 whereby the accused-appellant has been convicted for the offences punishable under Sec. 8/15 and 8/18 of NDPS Act, 1985 and has been sentenced with maximum of 15 years rigorous imprisonment along with fine of Rs.50,000.00.

(2.) Learned counsel for the accused-appellant submits that a patently false case has been foisted against the appellant. He has nothing to do with the offences alleged. After thorough investigation, he was exonerated from the charges levelled against him and his involvement was not found by the agency and, therefore, charge-sheet came to be filed against another accused Mitthulal. After submission of charge-sheet, an application came to be submitted at the behest of the prosecution under Sec. 193 of the Cr.P.C. but that was dismissed vide order dtd. 20/6/2009. After lapse of some time, the same prayer was made by the prosecution by filing a subsequent application under Sec. 193 of Cr.P.C. to implead the present appellant as an accused which came to be allowed by the learned trial Court on 15/3/2016. In this view of the matter, learned counsel submits that by virtue of Sec. 362 of Cr.P.C. and in view of the judgment passed by Hon'ble the Supreme Court in case of Adalat Prasad Vs. Rooplal Jindal and Ors. reported in (2004) 7 SCC 338, after passing of any order, the criminal Court becomes functus officio and review is not permissible once the criminal Court has taken cognizance and arraigned any person as an accused and without there being any change of circumstance or change in legal situation, the same prayer cannot be allowed. Thus, learned trial Court has committed a patent error of law in arraigning the appellant as an accused. Learned counsel drew attention of this Court towards the statement of PW33 Arpan who was the SHO at the relevant point of time and conducted investigation in this matter. He has categorically admitted in the cross examination that it was revealed during the investigation that the premise was rented out to the other person by the accused-appellant Mitthulal vide deed dtd. 21/6/2008 and the same has been tendered into evidence as Exhibit- P-34. This witness also admits in cross-examination that it was revealed during the investigation that in the month of July-August 2008, the accused-appellant Lakhpat Singh was living in a hotel situated near highway along with his family and he was running the said hotel. He categorically admits that as per his investigation, the accused-appellant Lakhpat Singh went to Ramdeora on 18/8/2008 and when he fell sick, he got admitted in Kesari Hospital. The relevant record was collected by him and produced on record. It is the admitted case of the prosecution that neither the appellant was found present at the crime scene nor any incriminating material or contraband was recovered from his possession. He has been made accused on the strength of confessional statement made by the co-accused during police custody which is otherwise not admissible in evidence by virtue of Ss. 25 and 26 of Indian Evidence Act. The said disclosure does not come within the ambit of Sec. 27 of Indian Evidence Act. It has been propounded by the Privy Council in the case of Pulukuri Kottaya and Ors. Vs. Emperor (AIR 1947 PC 67) that since nothing was discovered or recovered, the disclosure statement made while in custody which distinctly connects the accused-appellant with the commission of the crime cannot be taken as an admissible piece of evidence. It is submitted that the learned trial Court has committed a grave error of law in reaching on an erroneous conclusion of guilt and therefore, the judgment of conviction and order of sentence is bad in the eyes of law. Since nothing is there on record from which involvement of the accused can be presumed, therefore, the condition under Sec. 37 and the impediment under Sec. 32-A of the NDPS Act do not come in way of suspending the sentence of the appellant. He was on bail during the course of the trial but the liberty granted in his favour was never misused and he was present on the date of conviction. He has a strong arguable case in his favour and upon success of the appeal, if the sentence has not been suspended, it would frustrate the purpose of filing this appeal. It is submitted that learned counsel for state admits that nothing was recovered from the appellant and he is not in a position to refute the admissions made by the Investigation Officer PW33 before the trial Court. Therefore, the application for suspension of sentence may be granted.

(3.) Learned Public Prosecutor vehemently opposes the prayer made by learned counsel for the accused-appellant.