SAMRATH AND OTHERS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Applicant-appellants have laid two separate applications under Section 389 Cr.P.C. for seeking suspension of sentence handed down by Special Judge, NDPS Cases, Pratapgarh (for short, 'learned trial Court') in Special Case No. 23/2013 by the impugned judgment dated 04.01.2017. Learned trial Court, by the impugned judgment, has convicted applicant-appellants Samrath and Kanheyalal for offence under Section 8/15 of the NDPS Act whereas applicant-appellant Mohal Lal is convicted for offence under Section 8 read with Section 25 of the NDPS Act besides offence under Section 8 read with Section 15 of the NDPS Act. The maximum sentence awarded to all the applicants is fifteen years' rigorous imprisonment besides fine.

(2.) Pressing these applications for suspension of sentence, it is argued by learned counsels for the applicant-appellants that during trial all the applicants were in custody and by now all of them have remained in custody for more than five years. It is also argued by learned counsels that final hearing of the appeals is likely to take considerable time and therefore their applications for suspension of sentence merit favourable consideration solely on the ground of prolonged custody. In support thereof, learned counsel has placed reliance on a decision of Supreme Court in Thana Singh v. CBN, 2013 (2) SCC 590. Adverting to the merits of the case, it is also submitted by learned counsels that Seizure Officer has flagrantly violated Section 42 of the NDPS Act, inasmuch as, at the relevant point of time, neither he was SHO of the concerned police station nor in-charge of the police station. In support thereof, learned counsel as referred to the statement of Seizure Officer, Nathu Lal (P.W.24) wherein he has very candidly admitted that, at the time of search and seizure, Mr. Bhati was posted as SHO of the concerned police station and in-charge of police station was Sajjan Singh. By relying on the testimony of P.W.24, learned counsels submit that keeping in view prolonged custody and apparent violation of Section 42 of the NDPS Act, it would not be appropriate to invoke the rigor envisaged under Section 37 of the NDPS Act. Lastly, learned counsels have contended that even while drawing samples of recovered contraband (poppy straw), the requisite procedure was not followed and the entire contraband was mixed and thereafter two samples were drawn, which was a vital fact that has not been taken note of by learned trial Court while convicting all the appellants for offence under Section 8/15(c) of the NDPS Act. In support thereof, learned counsels have placed reliance on a decision in Netram v. State of Rajasthan, (2014) (2) WLN 394 (Raj).

(3.) Per contra, learned Public Prosecutor has opposed both these bail applications for suspension of sentence.