HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1177/2024 Ashok Tiwari @ Dada Tiwari Son Of Shambhu Dayal, Resident Of Katla Mohalla, Police Station Malakhera, District Alwar (Raj) (Accused Appellant Is Presently Confined In Central Jail Alwar) ----Petitioner Versus State of Rajasthan, through P.P ----Respondent For Petitioner(s) : Mr. Vijay Kumar Gupta For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ANIL KUMAR UPMAN O R D E R DATE OF PRONOUNCEMENT:- 29/01/2025 1. The instant application for suspension of sentences under Section 389 CrPC has been preferred on behalf of the appellant- applicant who has been convicted for offences under Sections 8/21, 8/22 of the NDPS Act and sentenced to undergo ten years' RI with fine of Rs.1,00,000/- and in default of payment of fine, to further undergo six months' additional RI, vide judgment dated 11.06.2024 passed by learned Special Judge, NDPS Cases, Alwar in Criminal Regular Case No.15/2021. 2. Heard learned counsel for the appellant-applicant, learned Public Prosecutor and perused the material available on record. 3. Learned Counsel for the petitioner submits that the learned trial has erred in convicting and sentencting the appellant for the (2 of 4) [SOSA-1177/2024] aforesaid offences. He submits that the learned trial court has not appreciated the evidence and other material available on record in right and correct perspective. There are major contradictions and discrepancies in the testimonies of the prosecution witnesses. He argues that all the paper formalities viz. Seizure memo, inspector report and arrest memo etc. were not prepared at the place of alleged recovery but were prepared in the police station. He submis that law requires that if certain thing is recovered at a particular place on the given time, then the memos could be prepared at the same place in the presence of witnesses and accused and thus, the recovery became doubtful and vitiated. He argues that samples were not drawn properly in terms of provisions of Section 52A of the NDPS Act. He contends that the appellant has good grounds to challenge the impugned judgment. The appellant was on bail during trial and he did not misuse the liberty of bail granted to him. He also submits that as per the custody certificate till 30.08.2024, the appellant has alredy served one year and six months imprisonment. The appellant does not have any other criminal antencedents under the NDPS Act and there is no likelihood of early hearing of the appeal. 4. Learned Public Prosecutor opposes the submissions advanced by the appellant'scounsel. He submits that looking to the huge recovery of contraband, the execution of sentence may not be suspended. However, he does not dispute with respect to the period of sentence served by him and absence of criminal antencents under the NDPS Act as also the fact that there is no possibility of early disposal of the appeal. (3 of 4) [SOSA-1177/2024] 5. I have given my thoughtful consideration to the submissions advanced at bar and perused the material available on record. 6. Having regard to the totality of facts and circumstaces of the case and considering the arguments advanced at bar, this Court is satisfied that the appellant has available to him strong grounds for assailing the impugned Judgment of conviction. As per the factual report of the learned Public Prosecutor, there is no other case registered against him. Till date, the appellant has served two years' imprisonment and there are bleak chances of early disposal of the appeal. Prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the embargo contained under Section 37 of the NDPS Act. As a consequence, I am of the firm opinion that conditions of Section 37 of the NDPS Act are duly satisfied. 7. In this background, and having regards to the facts and circumstances of the case, I am inclined to suspend the sentences awarded to the appellant. Accordingly, the instant application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentence of imprisonment passed by learned Special Judge, NDPS Cases Alwar vide judgment dated 11.06.2024 in Regular Criminal Case No.15/2021 against the appellant-applicant Ashok Tiwari @ Dada Tiwari S/o Shri Shambhu Dayal shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail, provided he executes a personal bond in the sum of Rs.1,00,000/- and two sound and solvent sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 28.02.2025 (4 of 4) [SOSA-1177/2024] whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- 1. That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided. 2. That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court. 3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court. 8. The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant(s) was/were tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail. (ANIL KUMAR UPMAN),J /Lalit Mohan