HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 184/2022

Dal Chand S/o Bhagwan Lal Mali, Aged About 33 Years,

Gadariyawas, P.s. Mandal, Dist. Bhilwara (Raj.). (At Present
Lodged In Central Jail, Udaipur).
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 185/2022
Kamlesh Kumar S/o Bheru Lal Gurjar, Aged About 29 Years, R/o
Chakkikhera (Kochariya) P.s. Mandal, District Bhilwara (Raj.) (At
Present Lodged At Central Jail Udaipur)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent

For Petitioner(s) : Mr. R.K. Charan

Dr. Vijendra Mahndiyan a/w
Mr. Pramod Nagar on VC.
For Respondent(s) : Mr. Mukesh Trivedi PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

Reserved on 05/07/2022
Pronounced on 13/07/2022

1. These criminal misc. suspension of sentence applications

under Section 389 Cr.P.C. have been preferred claiming the

following relief:

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“It is, therefore, humbly prayed that this application

may kindly be allowed and the sentence of
imprisonment and fine passed by Special Judge,
NDPS Act Cases No.2, Chittorgarh in Sessions Case
No.54/2017 (33/16) vide judgment dated 22.2.2022
may kindly be suspended during the pendency of this
appeal and the appellant-petitioner may kindly be
ordered to be released on bail.”

2. The matter pertains to the offences under Sections 8/15,

8/25 & 8/29 of the NDPS Act.

3. As regards accused-applicant Dalchand, learned counsel for

the accused-applicants submitted that neither the said accused-

applicant was the registered owner of the seized vehicle, nor the

same was recovered from his possession, nor was he given the

requisite notice under Section 50 of the NDPS Act. As per learned

counsel, the samples were not kept in the separate bags, rather

the samples were mixed, and thereafter, converted into one

sample, and thus, the whole proceeding has been done in an

illegal manner.

4. As regards accused-applicant Kamlesh, learned counsel for

the accused-applicants submits that though it was alleged that the

said accused-applicant ran away from the spot, but after his

arrest, the requisite identification parade was not conducted. As

per learned counsel, accused-applicant Kamlesh has stated before

the police that the vehicle in question was sold by him to Kishan,

prior to the incident in question, but instead of apprehending the

said Kishan, false implication of accused-applicant was made in

this case.

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5. Learned counsel for the accused-applicants also harped upon

non-compliance of the provisions of Sections 42 & 50 of the NDPS

Act, in this case.

6. Learned counsel for the accused-applicants relied upon the

judgment rendered by this Hon’ble Court in Netram Vs. State of

Rajasthan (S.B. Criminal Appeal No.673/2008, decided on

18.10.2013) as well as the order dated 07.07.2021 passed by this

Hon’ble Court in Sashi Vs. Union of India (S.B. Criminal Misc.

Suspension of Sentence Application (Appeal)

No.505/2020) and the order dated 12.01.2022 passed by this

Hon’ble Court in Ram Singh Vs. State (S.B. Criminal Misc. III

Suspension of Sentence Application (Appeal)

No.768/2020).

7. Learned Public Prosecutor however, opposed the aforesaid

submissions made on behalf of the accused-applicants.

8. Heard learned counsel for the parties as well as perused the

record of the case, alongwith the judgment and orders cited at the

Bar.

9. This Court finds that accused-applicant Kamlesh, though

averred that he had sold the vehicle in question on 07.11.2015 i.e.

prior to the incident in question, but the same has not been

substantiated by placing any requisite document on record.

10. This Court further finds that though accused-applicant

Dalchand may not be the owner of the vehicle in question, but he,

alongwith Kamlesh at the relevant time, was sitting in the vehicle

and found to be in possession of the contraband article, which

clearly falls within the ambit of Section 25 of the NDPS Act, as

rightly observed by the learned trial court.

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11. As regards the contention of the accused-applicants

regarding non-compliance of the provisions of Sections 42 & 50 of

the NDPS Act, this Court finds that the learned trial court has

rightly observed that looking into the facts of the case, such

compliance was not mandatory, but the same was only directory

in nature.

12. The judgment and orders relied upon by learned counsel for

the accused-applicants does not render any assistance to the case

of the accused-applicants.

13. Thus, in view of the above and on a consideration of the

overall facts and circumstances of the case, this Court does not

find it a fit case, so as to suspend the sentence as awarded to the

accused-applicants by the learned trial court.

14. Consequently, the present applications seeking suspension of

sentence are dismissed.

(DR.PUSHPENDRA SINGH BHATI), J.

SKant/-

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