HAJARI LAL Vs. UNION OF INDIA

JUDGEMENT

(1.) Instant 2nd suspension of sentence application is preferred in pending appeal which was filed aggrieved from order of conviction and sentence dtd. 1/6/2022 in sessions case No. 128/2015 passed by learned Special Judge (NDPS Cases), Jhalawar whereby appellant-accused Hajari Lal was convicted under Ss. 8/19 and 8/26 of NDPS Act and further sentenced to undergo rigorous imprisonment of 10 years with fine ofRs. 1,00,000/- and rigorous imprisonment of 3 years with fine ofRs. 10,000/- respectively.

(2.) Learned Counsel for petitioner has submitted that the learned Trial Court without considering the compliance of mandatory provision of Rules 17 and 18 of NDPS Rules, 1985 has convicted the appellant-accused under Sec. 8/19 of NDPS Act. He submitted that Rule 18 provides that sealed opium should be opened and sample be drawn in presence of cultivator, but in the instant case no notice was served upon cultivator and the sample was drawn in his absence, therefore, due to non-observance of Rule 18 the conviction is liable to be set aside. He specifically relied upon order dtd. 27/1/2023 in S.B. Criminal Misc. Suspension of Sentence Application No. 385/2022 in S.B. Criminal Appeal No. 558/2022 titled as Ramesh Vs. Union of India, wherein a Co-ordinate Bench has allowed suspension of sentence application of Ramesh son of Dhunni Lal.

(3.) Aforesaid contentions were opposed by learned Special Pubic Prosecutor on the ground that this is a case of embezzlement and non-compliance in terms of cultivators by the appellant-applicant, therefore, he is not entitled for any relief whatsoever. He also submitted that Rule 18 is just a directory rule and not a mandatory rule, therefore, the appellant is not entitled for any kind of relief. He also submitted that at the time of weighing the appellant-applicant fled away from the spot and he was not present on the spot, therefore, sample cannot be drawn in his presence.