ARUN KUMAR PANDEY Vs. UNION OF INDIA

JUDGEMENT

(1.) Present application for suspension of sentence in present appeal, filed against order of conviction and sentence dtd. 18/8/2018 in Sessions Case No. 25/2017, passed by learned Special Judge (NDPS Cases), Dausa is filed on behalf of appellant.

(2.) Learned counsel for appellants submitted that the trial Court has grossly erred in convicting and sentencing the accused appellants. He submitted that the seizure memo clearly indicated that in each gunny bag, 10-20 small packets were there and officer who was conducting seizure had not collected samples from all bags. He further submitted that the mandatory provisions of NDPS Act were again violated and no proceedings took place at the spot which was admitted by the witnesses before the learned trial court. He further submitted that the information of transportation of illicit contraband goods was received well in advance but no efforts were made to obtain search and seizure warrant from the Magistrate. Moreover, no chance was offered to present appellants for their search before any Gazetted officer or Magistrate. He for that submitted that accused have already undergone sentence for more than 6 years and maximum punishment in the matter is 10 years of rigorous imprisonment and they are entitled to be released on bail during the pendency of present appeal. While referring judgments of Hon'ble Supreme court in the case of Ramnik Singh Vs. Intelligence Officer (2013) SCC Online 1276 and Mayuresh Nandkumar Purohit Vs. Kaushik Manna 2018 CLR (SC) 251 he submitted that the Hon'ble Supreme Court while considering the fact that when maximum punishment awarded was 10 years and more than 50 percent was already undergone by the accused persons, they were released on bail after allowing the application for suspension of sentence. While referring the judgment of Co-ordinate Bench of this Hon'ble Court in case of Jagdish Prasad Sharma versus Union of India (S.B. Criminal Misc. Bail Application No. 164/2022 in S.B. Criminal Appeal No. 246/2022) he submitted that it is not mandatory for the Court to consider the embargo under Ss. 37 and 32A of NDPS Act. He further relied upon the judgment passed by Hon'ble Supreme Court in the case of Boota Singh & Ors. Vs. State of Haryana (2021) 0 Supreme (SC) 203 and submitted that in case of non-compliance of provisions of NDPS Act, appellants are entitled for release on bail. He further referred the judgment of Hon'ble Supreme Court in case of Mossa Koya K.P. Vs. State (NCT of Delhi) 2021 0 Supreme(SC) 945 wherein application for suspension of sentence under Sec. 389 Cr.P.C. was allowed. Similarly, in SLP (criminal) No.10515/2019 titled as Sabir Vs. State of Madhya Pradesh and Anr. order dtd. 10/2/2023 passed by Hon'ble Apex Court was also referred wherein statement under Sec. 67 of NDPS Act was not relied in light of Tofan Singh Vs. State of Tamil Nadu (2021) 4 SSC 1. Learned counsel for appellant further relied upon judgment passed by Hon'ble Supreme Court in the case of Union of India Vs. Leen Martrin & Anr. 2018 0 Supreme (SC) 188 again on the point of statement under Sec. 67 of NDPS Act. He further relied upon the judgment in the cases of Netram Vs. State of Rajasthan 2013 0 Supreme(Raj) 1948, Vardi Chand @ Pappu Vs. State of Rajasthan 2009 0 Supreme (Raj.) 2380, Navla Vs. State of Rajasthan 2005 (1) RCC 523, Bhanwar Lal @ Bhura Vs. State of Rajasthan (S.B. Criminal Misc. Suspension of Sentence No. 797/2022 in Criminal Appeal No. 1186/2022) and submitted that more than 50 percent of the sentence awarded is already undergone and since disposal of appeal will take more time, appellants be released on bail.

(3.) Aforesaid contentions are opposed by learned Special Public Prosecutor while referring the judgments of Hon'ble Supreme Court in case of Union of India Vs. Rattan Malik (2009) 2 SCC 624, State of Kerala Vs. Rajesh (Criminal Appeal No. 154- 157 of 2020) and Dadu @ Tulsidas Vs. State of Maharashtra (Writ Petition (CRL.) 169/1999) submitted that without complying the provisions of Sec. 37 NDPS Act, no order of application for suspension of sentence can be passed. He further submitted that herein the recovery was effected from a truck upon receiving concrete information wherefore entire conviction is based on recovery. He submitted that even if the discrepancies in the statement of independent witnesses are assumed, the Court can consider the statement of other public servants who were there on the spot and there were no discrepancies while deposing before learned trial Court. He submitted that the mandatory provisions as provided under NDPS Act were followed and the constitutional validity of which were upheld by the Hon'ble Supreme Court. While referring judgment of Division Bench of this Court in case of Daulat Singh @ Gatu Vs. State of Rajasthan 2014 (2) Cr.L.R. (Raj.) 738 which was further referred in S.B. Criminal Misc. Suspension of Sentence Application No. 889/2018 in criminal appeal No. 1466/20418, he submitted that Hon'ble Court has to follow the provision of Sec. 37 of NDPS Act before passing any order.