[2025:RJ-JP:16180] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1809/2023 In S.B. Criminal Appeal No.3387/2023 Rakesh S/o Shri Harphool, Resident Of Rukansar, Police Station Ram Garh Sethan, District Sikar (Rajasthan). (Accused Presently In Confined At Fatehpur Shekhawati) ----Petitioner Versus State Of Rajasthan, Through The P.p ----Respondent Connected With S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1812/2023 In S.B. Criminal Appeal No.3392/2023 Suresh Kumar Son Of Hanumanaram, Resident Of Dhandhan Ps Ramgarh Sethan District Sikar Rajasthan (At Present In Central Bikaner ) ----Petitioner Versus 1. State of Rajasthan, Through The PP 2. Umashanker Sethan Police Station Incharge Ramgarh Sethan, District Sikar ----Respondents For Petitioner(s) : Mr. Ripu Daman Singh Naruka Mr. Saroj Kumar Trivedi For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 15/04/2025 [2025:RJ-JP:16180] (2 of 7) [SOSA-1809/2023] 1. These two SOS applications were preferred by applicants- accused Rakesh S/o Shri Harphool and Suresh Kumar S/o Hanumanaram in pending appeal filed aggrieved from judgment dated 10.10.2023 in Sessions Case No.20/2021 passed by learned Additional Sessions Judge, Fatehpur Shekhawati, District Sikar, whereby, the applicants-accused were convicted under Section 8/15 of NDPS Act, and, further sentenced to undergo rigorous imprisonment of 10 years with fine of ₹2,00,000/- each. 2. Learned counsels for the applicants while relying upon judgment in case of Mangilal Vs. State of Rajasthan SOS Application Nos.844/2023 and 766/2023 in S.B. Criminal Appeal Nos.310/2022 and 334/2022 has submitted that the applicants-accused were sentenced to undergo rigorous imprisonment of 10 years, but till date Rakesh has served more than 4 years and 8 months, whereas Suresh Kumar has served more than 3 years and 11 months, a fixed term sentence and applicants have already served substantial part of sentence and there is no likelihood of hearing of present appeals, so they are entitled for bail. He has further placed reliance upon order dated 01.03.2017 in SOS No.115/2017 passed by a Coordinate Bench by this Court. 3. Learned counsel for applicants has further relied upon order dated 01.04.2025 in Rakesh Vs. State of Rajasthan SLP (Criminal) No.486/2025 and submitted that on the basis of period of incarceration already undergone, which was about 5 years, Hon’ble Supreme Court has allowed suspension of sentence, as there are no chance of hearing of appeal. [2025:RJ-JP:16180] (3 of 7) [SOSA-1809/2023] 4. Aforesaid contentions were opposed by learned Public Prosecutor and he submitted that matter pertains to commercial quantity, thus, without compliance of Section 37 of NDPS Act, SOS application cannot be allowed. 5. Heard learned counsels for the applicants and learned Public Prosecutor. Perused the record. 6. In the intervening night of 25th-26th July, 2020, when a pickup No.RJ-23-GA-0238 was intercepted then two persons including driver Suresh Kumar and Rakesh Kumar were found sitting in cabin, but one person who was sitting back portion of the pickup, ran away. On enquiry and search, five gunny bags were found with poppy straw (crushed capsules of opium poppy), with total weight was 100 kg. After seizure, FIR No.88/2020 under Section 8/15 of NDPS Act was registered at Police Station Ramgarh Sethan. After investigation, police has filed charge-sheet against Suresh Kumar and Rakesh under Section 8/15 of NDPS Act, and against Madanlal under Section 299 of Cr.P.C. After framing the charge against both the applicants, 12 witnesses were examined by prosecution and 28 documents were exhibited. These applicants were examined under Section 313 Cr.P.C., wherein, they have not submitted any defence evidence. Learned Trial Court has convicted both of them under Section 8/15 of NDPS Act. 7. A perusal of custody certificate indicate that the period of incarceration of Rakesh is more than 4 years and 8 months, whereas the period of incarceration of Suresh Kumar is 3 years and 11 months. The record further indicate that bail application No.11057/2022 of Rakesh was dismissed on 17.04.2023, but third bail application No.16118/2022 of Suresh Kumar was allowed on [2025:RJ-JP:16180] (4 of 7) [SOSA-1809/2023] 04.01.2023 by a Coordinate Bench of this Court. Thus, Suresh Kumar was released on bail in pursuant to order dated 04.01.2023. 8. In case of Rakesh Vs. State of Rajasthan (supra), Hon’ble Supreme Court has allowed SLP (Criminal) on the ground that the period of incarceration already undergone is about five years. In case of Mangilal Vs. State of Rajasthan (supra), SOS application was allowed by a Coordinate Bench of this Court while placing reliance upon judgment of Hon’ble Supreme Court in case of Satendra Kumar Antil Vs. CBI (2022) 10 SCC 51. In case of Shravan Vs. State of Rajasthan Case No.CRLMB/7182/2023, a Coordinate Bench has allowed SOS on basis of judgment of Division Bench of the Punjab and Haryana High Court in case of Daler Singh Vs. State of Punjab 2007 (1) RCR (Criminal) 316. 9. The matter pertains to recovery, and involvement relating to contraband in commercial quantity. Section 37 of NDPS Act is reproduced as under: 37. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. [2025:RJ-JP:16180] (5 of 7) [SOSA-1809/2023] (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. 10. Since, the matter pertains to commercial quantity, therefore, it is mandatory for this Court to satisfy the required compliance under Section 37 of NDPS Act. The legal position settled so far clearly indicate that this Court has to satisfy first about compliance under Section 37 of NDPS Act before considering release of accused. Ultimately, the Court has to consider facts such as nature and quantity of drugs recovered from accused, role of accused, antecedents and criminal history of accused. 11. In case of Dadu Vs. State of Maharashtra (2000) 8 SCC 437, it was held that the Appellate Court is bound by constraints of Section 37 of NDPS Act. A three Judge Bench of Hon’ble Supreme Court in case of Collector of Customs of New Delhi Vs. Ahmada Lieva Nadira (2004) 3 SCC 549 has considered the provisions under Section 37 of NDPS Act and held that something more than prima facie ground and if it contemplates substantial and probable cause for believing that the accused is not guilty of the alleged offence, the Court may consider compliance. Further reiterating broad parameters in case of State of Kerala and Ors. Vs. Rajesh and Ors. (2020) 12 SCC 122, it was held that if anyone of in two conditions, as prescribed under Section 37 of NDPS Act is not satisfied then bail cannot be granted. 12. In case of NCB Vs. Mohit Agarwal (Criminal Appeal No. 1001-1002/2022) a three Judge Bench of the Hon’ble Supreme Court while considering Section 37 of NDPS Act has observed that [2025:RJ-JP:16180] (6 of 7) [SOSA-1809/2023] the length of period of custody is not a ground to release accused on bail. Very recently a bail granted by a Co-ordinate Bench of the High Court of Delhi was under challenge before Hon’ble Supreme Court in case of NCB Vs. Kashif 2024 INSC 1045 and while remitting the matter, Hon’ble Supreme Court has observed that the provisions of NDPS Act are required to be interpreted while keeping in mind the scheme, object and purpose of the act along with the impact on society as a whole. It has to be interpreted literally and not liberally as that may ultimately frustrate the object and purpose of preamble of the Act. While considering the application for bail, the Court must bear in mind the provision of Section 37 of NDPS Act which is mandatory in nature. 13. Having considered the provision of law as referred herein- above, it is apparent that unless the Court is satisfied about compliance of Section 37 of NDPS Act it cannot allow or consider the bail of present appellants. Herein, this case the matter pertains to recovery and involvement in a matter relating to commercial quantity of narcotics, therefore, I am of considered view that merely on the ground as mentioned by learned counsel for appellants they are not entitled to release on bail. 14. Herein this case, the applicant-accused Rakesh has undergone more than 4 years and 8 months, which is near to 47%, but Suresh Kumar has undergone 3 years and 11 months, which is nearly 40% of the sentence. 15. Since, the matter relates to commercial quantity, therefore, without compliance of Section 37 of NDPS Act, I am of considered view that the applicants are not entitled to be released on bail merely on the ground of period of incarceration. [2025:RJ-JP:16180] (7 of 7) [SOSA-1809/2023] 16. In view of aforesaid, the SOS application Nos.1809/2023 and 1812/2023 filed by applicants-accused Rakesh S/o Shri Harphool and Suresh Kumar S/o Hanumanaram are hereby dismissed. 17. List these appeals for hearing in the month of August, 2025. (ASHOK KUMAR JAIN),J GAURAV /149-150