PAWAN KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Applicant-appellants have laid this third application for suspension of sentence under Sec. 389 Cr.P.C. The learned trial Court, by the impugned judgment convicted the applicants-appellants for offence punishable under Sec. 8 read with Sec. 15 of the NDPS Act and handed down 10 years' imprisonment with fine of Rs.1,00,000.00, and in default of payment of fine to undergo sentence for one year's rigorous imprisonment.

(2.) The first application for suspension of sentence was dismissed as not pressed on 5th of February, 2018 followed by second application for suspension of sentence on 8th of December, 2018.

(3.) Espousing cause of the applicants-appellants for suspension of sentence, it is contended by learned counsel that appellants remained in custody during trial for a considerable period and by this time their custodial period has exceeded more than five years. Learned counsel further submits that final hearing of the appeal is unlikely in new future. Adverting to the merits of the case, it is also contended by learned counsel that during search and seizure of contraband, allegedly recovered from the appellants, besides truck transporting contraband, they too were subjected to personal search, and notice in this behalf served on them under Sec. 50 of the NDPS Act is infirm having direct ramification on entire search and seizure proceedings. Elaborating his submissions, learned counsel has urged that in the notice under Sec. 50, served on the applicants-appellants, the Seizure Officer has incorporated third option of himself to carry out search and seizure, which is dehors the mandatory provisions of Sec. 50 of the NDPS Act. In support thereof, learned counsel has placed reliance of a decision of Supreme Court in State of Rajasthan v. Parmanand [ (2014) 5 SCC 345 ]. It is also submitted by learned counsel that to prove search and seizure, despite availability of umpteen time, no endeavour was made by the investigating agency to procure independent witnesses but this aspect has not at all been considered by the learned trial Court. He, therefore, submits that non-compliance of Sec. 100(3) and (4) Cr.P.C. is clearly apparent which has prima facie vitiated the search and seizure. In support of his contention, learned counsel has placed reliance on a decision of this Court in Ali Khan v. State of Rajasthan [2013 (4) Cr.L.R. (Raj.) 1920] and Supreme Court decision in State of Punjab v. Paramjit Singh [2015 (2) Drugs Cases (Narcotics) 284]. It is contended by learned counsel that there is no criminal antecedents of the applicants-appellants barring their involvement in the present case. Learned counsel has also stated that sentence handed down to co-accused has already been suspended by this Court and case of present appellants is not distinguishable from him. As regards prolonged custody of the applicants-appellants, for granting them indulgence in the matter of suspension of sentence, learned counsel has placed reliance on following judgments: