[2025:RJ-JP:15989] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 80/2024 in S.B. Criminal Appeal No. 731/2023 1. Rajaram S/o Shri Thakar Ram, Aged About 62 Years, R/o Tandurwali, Police Station Tibbi, District Hanumangarh (Raj). (Confined In Central Jail, Jaipur) 2. Dharampal Son Of Shri Manphool, Aged About 51 Years, R/o Tandurwali, Police Station Tibbi, District Hanumangarh (Raj). (Confined In Central Jail, Jaipur) ----Petitioners Versus State Of Rajasthan, Through Public Prosecutor ----Respondent Connected With S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1767/2023 in S.B. Criminal Appeal No.733/2023 in Prabhu Lal Son Of Shri Tulsiram, Aged About 40 Years, R/o Palka Kheda, Police Station Bassi, District Chittorgarh (Raj.) (At Present Confined In Central Jail, Jaipur) ----Petitioner Versus State Of Rajasthan, Through Public Prosecutor ----Respondent S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1769/2023 in S.B. Criminal Appeal No. 732/2023 Arun Kumar Son Of Shri Rajaram, Aged About 37 Years, R/o Tandurwali, Police Station Tibbi, District Hanumangarh (Raj). (At Present Confined In Central Jail, Jaipur) ----Petitioner [2025:RJ-JP:15989] (2 of 8) [SOSA-80/2024] Versus State Of Rajasthan, Through Public Prosecutor ----Respondent For Petitioner(s) : Mr. Avtar Singh Rathore Mr. Rajveer Singh Gurjar Mr. Kapil Nagayach Mr. Nitin Jain Mr. Rajaram Choudhary For Respondent(s) : Mr. Devi Singh, PP with Mr. Gaurav Gupta, AGA HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 08/04/2025 1. These applications for suspension of sentence were preferred by appellant-accused Rajaram, Dharampal, Prabhu Lal and Arun Kumar in three pending appeals No. 731/2023, 732/2023 and 733/2023 filed aggrieved from judgment of conviction and sentence dated 10.04.2023 in sessions case No. 18/2017 passed by learned Special Judge, NDPS Act Cases, Jaipur Metro-I. 2. In a matter arising out of FIR No. 06/2017 P.S. SOG, Jaipur all four accused Rajaram, Dharampal, Prabhu Lal and Arun Kumar have faced trial and accused Rajaram and Dharampal were convicted under Section 8/18 of NDPS Act whereas Arun Kumar and Prabhu Lal were convicted under Section 8/29 of NDPS Act. All accused were sentenced to undergo rigorous imprisonment of 10 years with fine of ₹1 lac. 3. As per custody certificate, Rajaram has undergone more than 5 years 10 months and 9 days, Arun Kumar has undergone more [2025:RJ-JP:15989] (3 of 8) [SOSA-80/2024] than 2 years and 27 days, Dharampal has undergone almost 6 years, Prabhu Lal has undergone almost 2 years. 4. Learned counsel for appellants while relying upon judgment in case of N.C.B. Vs. Lakhwinder Singh (2025) INSC 190 has submitted that the appellants Rajaram and Prabhulal has served more than five years e and only on period of custody they are entitled for bail. He further submitted that out of four appellants two accused Rajaram and Dharampal were charged under Section 8/18 of NDPS Act and they have already served more than 50% of the awarded sentence. He further referred the findings recorded by the Trial Court and submitted that the Trial Court has committed serious error while considering the evidence of prosecution and submitted that the discrepancies were ignored by the Trial Court. He also referred the charge upon Prabhu Lal and Arun Kumar and submitted that there is no evidence to establish the charge of conspiracy and abatement but the Trial Court has convicted both the accused under Section 8/29 of NDPS Act. He further submitted that Prabhu Lal was released by a Co-ordinate Bench of this Court on 03.03.2017 whereas the accused Rajaram was released by Hon’ble Supreme Court of India. He further referred that all accused were on bail during trial and they have not misused any liberty granted to them. At last, he submitted that in case, appeal is not considered on merits then the term of sentence would be complete and the purpose of appeal would be frustrated. 5. Aforesaid contentions were opposed by learned Public Prosecutor. He has submitted custody certificate of appellants and same are taken on record. He has also submitted that he has filed [2025:RJ-JP:15989] (4 of 8) [SOSA-80/2024] replies to the applications for suspension of sentence, preferred by applicants. 6. Heard learned counsel for the appellants and learned Public Prosecutor. Perused the material available on record. 7. On the basis of information about illegal smuggling of arms and ammunition from Bassi, Chittorgarh to Punjab a temporary check point was established at Kanwaliyas toll booth. Thereafter, the police has intercepted Bolero Car No. RH-22-E-4977. On interception, it was found that Rajaram was driving whereas Dharampal was sitting as a passenger. On search, 4 Kgs of opium was recovered from four different packets. After search, seizure memo and other memos were prepared and an FIR was registered. It was found that Rajaram and Arun Kumar (son of Rajaram) both have procured opium from PrabhuLal. After investigation police has filed charge-sheet against Rajaram, Dharampal, Prabhu Lal and Arun Kumar. After framing of charge, 24 witnesses were examined by prosecution and 85 documents were exhibited by prosecution. Accused were examined under Section 313 Cr.P.C. and they have not submitted any defence evidence. The Trial Court has convicted Rajaram and Dharampal under Section 8/18 of NDPS Act whereas Prabhulal and Arun Kumar under Section 8/29 of NDPS Act. 8. The matter pertains to commercial quantity and Section 37 of NDPS Act prescribes that without compliance under Section 37 of NDPS Act, a bail or application for suspension of sentence cannot be allowed by any Court. 9. In case of N.C.B. Vs. Lakhwinder Singh (supra) Hon’ble Supreme Court has considered a case wherein substantive [2025:RJ-JP:15989] (5 of 8) [SOSA-80/2024] sentence awarded was rigorous imprisonment of 10 years and the High Court has granted bail to respondent- Lakhwinder Singh after completion of 4 and a half year and same was challenged before Hon’ble Supreme Court by NCB against order of grant of bail. The judgment in case of Dadu Vs. State of Maharashtra (2000) 8 SCC 437 was referred by State which indicate that Appellate Court is bound by constraints of Section 37 of NDPS Act. 10. Hon’ble Supreme Court in case of N.C.B. Vs. Lakhwinder Singh (supra) has observed that in case of bail is denied in such a factual situation only on ground of Section 37 of NDPS Act, it will amount to the violation of the rights of the accused under Article 21 of the Constitution of India. 11. Herein, this case the facts which were considered by learned Trial Court clearly indicate that contraband narcotic substance was recovered from conscious possession of accused Rajaram & Dharampal, and, both were found at spot and the Trial Court has convicted them under Section 8/18 of NDPS Act. The quantity of opium recovered was 4 Kgs and same is a commercial quantity. As per evidence on record both accused Rajaram and Dharampal were found in possession of opium in commercial quantity. Rajaram has served more than 5 years 10 months whereas Dharampal has served more than 5 years and 11 months. The period undergone by Rajaram & Dharampal is more than 50% but 4 Kgs. opium was recovered from conscious possession of both the accused. Herein, this case Prabhu Lal has served only 2 years and 1 month whereas Arun Kumar has also served almost about 2 years out of awarded sentence of 10 years under Section 8/29 of NDPS Act. Prabhu Lal was released on bail by a Co-ordinate Bench [2025:RJ-JP:15989] (6 of 8) [SOSA-80/2024] of this Court on 03.03.2017 whereas Rajaram was released on bail by Hon’ble Supreme Court on 02.12.2020. 12. The matter pertains to recovery, involvement and conspiracy 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. (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. 13. 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 is required to consider facts such as nature and quantity of drugs recovered from accused, role of accused, antecedents and criminal history of accused. [2025:RJ-JP:15989] (7 of 8) [SOSA-80/2024] 14. 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 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. 15. Having considered the provision of law as referred herein- above, it is apparent that unless the Court is satisfied about 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. 16. In view of aforesaid, the accused are not entitled for beneift from judgment in case of Lakhwinder Singh (supra), thus the application for suspension of sentence preferred by appellants- accused Rajaram, Dharampal, Prabhu Lal and Arun Kumar are hereby dismissed. [2025:RJ-JP:15989] (8 of 8) [SOSA-80/2024] 17. List these criminal appeals for hearing in the month of August, 2025. (ASHOK KUMAR JAIN),J MONU /11-13