KULWANT RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Applicant-appellant has laid this second application for suspension of sentence under Section 389 Cr.P.C. The learned trial Court, by the impugned judgment convicted the applicant- appellant for offence punishable under Section 8 read with Section 15 of the NDPS Act and handed down 10 years' imprisonment for each offence with fine of Rs.1,00,000/-, 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 with liberty to renew prayer after six months.

(3.) Espousing cause of the applicant-appellant for suspension of sentence, it is contended by learned counsel that appellant remained in custody during trial for a considerable period and by this time his 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 the learned counsel that during search and seizure of contraband, allegedly recovered from the appellant, besides truck transporting contraband, he too was subjected to personal search, and notice in this behalf served on him under Section 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 Section 50, served on the applicant-appellant, the Seizure Officer has incorporated third option of himself to carry out search and seizure, which is dehors the mandatory provisions of Section 50 of the NDPS Act. In support thereof, learned counsel has placed reliance of a decision of Supreme Court in State of Rajasthan V/s. 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 Section 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 Vs. State of Rajasthan [2013 (4) Cr.L.R. (Raj.) 1920] and Supreme Court decision in State of Punjab Vs. Paramjit Singh [2015 (2) Drugs Cases (Narcotics) 284]. It is contended by learned counsel that there is no criminal antecedents of the applicant-appellant barring his involvement in the present case. As regards prolonged custody of the applicant-appellant, for granting him indulgence in the matter of suspension of sentence, learned counsel has placed reliance on following judgments: