BABLU @ PAPPU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard learned counsel for the appellant as well as learned Public Prosecutor on the application for suspension of sentence.

(2.) By the instant application under Section 389 Cr.P.C., applicant-appellant has craved for suspending the sentence handed down by Special Judge, NDPS Cases No.1, Chittorgarh (for short, 'learned trial Court'), by its verdict dated 24.01.2017. Learned trial Court, by the aforesaid verdict, convicted applicant- appellant for offence under Section 8 / 18(b) of the NDPS Act and handed down maximum sentence of ten years' rigorous imprisonment with fine of Rs.1,00,000/-, and in default of payment of fine to further undergo one year's rigorous imprisonment.

(3.) It is submitted by learned counsel that out of the maximum sentence of ten years handed down by learned trial Court, applicant-appellant has already undergone sentence for almost five years and ten months. It is also submitted by learned counsel that there is no criminal antecedent of the applicant-appellant showing his involvement in any other offence under the NDPS Act . Learned counsel further submits that PW5 the Seizure Officer was admittedly not S.H.O. of the police station concerned, which he has admitted in his statements before the learned trial Court also, therefore, proceedings of search and seizure undertaken in the matter has violated Section 42(2) of the NDPS Act and the notification issued by State Government on 16 th of October, 1986. It is also submitted by learned counsel that notice under Section 50 of the NDPS Act served on the applicant-appellant was laconic, inasmuch as, in the said notice the Seizure Officer has also given option for carrying out search and seizure himself besides options of Magistrate and Gazetted Officer. In support of his arguments, learned counsel has placed reliance on a decision of the Supreme Court in State of Rajasthan Vs. Parmanand & Anr. [(2014) 5 SCC 345]. Lastly, learned counsel has urged that final hearing in the appeal is likely to take considerable period, therefore, keeping in view the fact that applicant-appellant is under incarceration for a considerable period of more than five years and ten months, his sentence may be suspended.