TIKMA RAM Vs. STATE

JUDGEMENT

(1.) Accused-appellant has laid this second application under Section 389 Cr.P.C., 1973 seeking suspension of sentence handed down by learned trial Court, while convicting him for offence under Section 8 read with Section 18 of the NDPS Act. The learned trial Court, by impugned judgment dated 22.05.2017, convicted the appellant for aforementioned offence and handed down sentence of 15 years' rigorous imprisonment with fine of Rs. 1,50,000/-, and in default of payment of fine to undergo sentence for one year's rigorous imprisonment.

(2.) At the outset, while pressing this second application for suspension of sentence, it is argued by learned Senior Counsel that sentence of appellant is liable to be suspended solely on the ground of prolonged custody inasumuch as he has already undergone sentence for five years and ten months. In support thereof, learned counsel has placed reliance on decisions of the Supreme Court in cases of Thana Singh v. Central Bureau of Narcotics [(2013) 2 SCC 603] and Mayuresh Nandkumar Purohit v. Kaushik Manna and Anr. [2018 Cr.L.R.(SC) 251] . Alternatively, while touching merits of the case, it is submitted by learned Senior Counsel that Seizure Officer has not only searched residential premises of appellant but further the appellant was subjected to personal search but notice under Section 50(1) of the NDPS Act served on him in this behalf contained third option of the Seizure Officer himself, therefore, the entire recovery of the contraband was clearly vitiated. It is also argued by learned Senior Counsel that this aspect has not been examined in right perspective by learned trial Court. In support thereof, learned Senior Counsel has placed reliance on a decision in case of State of Rajasthan v. Parmanand [(2014) 5 SCC 345] . It is also submitted by learned Senior Counsel that though recovery of contraband in the matter was 8 kg opium milk, which is higher than commercial quantity, but the samples collected by the Seizure Officer were not dispatched/sent for FSL examination within 72 hours. Learned Senior Counsel has further argued that not sending the samples to laboratory for examination within the stipulated period is a glaring example of gross violation of Clause 1.13 of the Standing Order No.1 of 88, issued by NCB. In support thereof, learned Senior Counsel has placed reliance on a decision of Supreme Court in case of Mohanlal v. State of Punjab [2018 (9) SCALE 663] . Learned Senior Counsel would contend that this vital aspect too was not considered by the learned trial Court while indicting the appellant. Lastly, learned Senior Counsel has submitted that two samples were drawn of 50 gm each but during FSL examination it revealed that in one of the samples quantity increased to 53 gms whereas the quantity of another sample decreased to 38 gms which is a clear indication that there was tampering with the samples and the samples did not reach FSL in self-same condition. In this regard, learned Senior Counsel has placed reliance on a decision in the case of Suresh Chandra v. State of Rajasthan [RLW 2002(1) Raj 25] .

(3.) Per contra, learned Public Prosecutor has vehemently opposed the application for suspension of sentence. It is contended by learned Public Prosecutor that there is no change much less substantial change in the circumstances after rejection of first application for suspension of sentence. Learned Public Prosecutor has also argued that the recovery of contraband from the appellant is higher than commercial quantity, therefore, rigor of Section 37 is clearly attracted.