[2025:RJ-JP:28750] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1350/2025 In S.B. Criminal Appeal No. 1857/2025 Shambhudayal Son Of Madhosingh, Aged About 45 Years, Resident Of Ward No. 01, Tiwari Mohalla, Andhi, Police Station Andhi, District Jaipur Rural Rajasthan (Presently Confined In Central Jail, Bandikui (Dausa)) ----Petitioner Versus State Of Rajasthan, Through Public Prosecutor. ----Respondent Connected With S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1348/2025 In S.B. Criminal Appeal No. 1854/2025 Mahesh Chand S/o Shri Ramkishan, Aged About 36 Years, R/o Lalsotiya Ki Dhani, Tan Sikandra, Police Station Sikandra, District Dausa (Raj.) (Presently Serving His Sentence In Sub-District Jail, Bandikui, Dausa). ----Petitioner Versus The State Of Rajasthan, Through The Public Prosecutor. ----Respondent For Petitioner(s) : Mr. Kapil Sharma in SOSA No. 1350/2025 Mr. Anshuman Saxena with Mr. Pallav Jhalani in SOSA No. 1348/2025 For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 29/07/2025 1. The instant applications for suspension of sentence are preferred by appellants - Shambhudayal Son Of Madhosingh and Mahesh Chand S/o Shri Ramkishan in pending appeals [2025:RJ-JP:28750] (2 of 5) [SOSA-1350/2025] filed aggrieved from order of conviction and sentence dated 03.07.2025 in Sessions Case No.27/2022 passed by learned Special Judge (NDPS Act Cases), Sikrai, Dist. Dausa whereby appellants were convicted for offence under Sections 8/15 of NDPS Act and sentenced accordingly. 2. Learned counsel for the appellants while relying upon grounds of appeals submitted that appellants are innocent persons and they were falsely implicated by police. They further submitted that before effecting search and seizure, no compliance about Section 42 of NDPS Act was made and same is admitted by prosecution witness in the instant case. He further submitted that even post-seizure this compliance is not made by police which is evident on record. He further submitted that a Constitutional Bench in case of Karnail Singh Vs. State of Haryana (2009) 8 SCC 4539 has specifically laid down that it is mandatory for the prosecution to prove that in case of search and seizure and arrest without warrant, provision under Section 42 of NDPS Act is complied. He further submitted that in the instant case non- compliance has cause prejudice to the appellants and it is sufficient to challenge the order of conviction. He further submitted that the trial court has ignored the grounds of non- compliance of Section 42 of NDPS Act. He further submitted that even compliance of mandatory provision under Section 50 of NDPS Act is not made by police before effecting search and seizure. He also submitted that the recovered quantity is little higher than small quantity and on alleged joint possession, appellants were fabricated by police. He further submitted that [2025:RJ-JP:28750] (3 of 5) [SOSA-1350/2025] both the appellants were on bail during trial and disposal of appeals will take time. 3. Learned counsel for Mahesh Chand submitted that there is one more case against Mahesh but same is a false case and appellant was not convicted in said case. 4. Aforesaid contentions were opposed by learned Public Prosecutor. He submitted custody certificates along with report received from concerned police station and same are taken on record. 5. Heard learned counsel for appellants and learned Public Prosecutor. Perused the record. 6. On 17.05.2021, SHO P.S. Sikandra, Kamlesh with police party has intercepted two suspects and after detaining them and making compliance of mandatory provision under the NDPS Act on search and seizure, police has found that in a yellow gunny bag, crushed poppy straw recovered from Mahesh Chand and weight was 1Kg 490gms and when another person Shambhudayal ws searched, then in another gunny bag 1Kg 800gms of crush poppy straw recovered. After completing the formalities, FIR No.216/2021 was registered under 8/15 of NDPS Act. After framing charge, prosecution has examined 10 witnesses and exhibited 54 documents. The accused were examined under Section 313 Cr.P.C. but he has not submitted any defence evidence. 7. There is no criminal antecedents against Shambudayal but there is one more case against 8/15 of NDPS Act against Mahesh Chand. Learned Public Prosecutor has admitted that this case is still pending and there is no conviction as yet. As per schedule [2025:RJ-JP:28750] (4 of 5) [SOSA-1350/2025] 1000gms of poppy straw is small quantity and recovered quantity is little more than small quantity. 8. At this stage, it is not possible for us to express any opinion on merits of the case, particularly non-compliance of Sections 42 and 50 of NDPS Act. Having considered the totality of facts and circumstances of the case and the fact that appellants were on bail during trial, it is a fit case to enlarge appellants on bail. 9. Therefore, without expressing any opinion on merits, I am of considered view that it is a fit case wherein appellants can be enlarged on bail. The applications under Section 430(1) B.N.S.S. are allowed and sentence of appellants accused-Shambhudayal Son Of Madhosingh and Mahesh Chand S/o Shri Ramkishan is suspended till disposal of appeals with the condition that each of them would execute a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for their appearance in this court on 20.11.2025 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- 1. After release of appellants on bail, they will not indulge in any criminal activity and if it is found that they are involved in any criminal activity, the order shall be recalled. 2. That they will appear before the trial Court in the month of January of every year till the appeal is decided. 3. That if the applicant(s) changes the place of residence, they will give in writing their changed [2025:RJ-JP:28750] (5 of 5) [SOSA-1350/2025] address to the trial Court as well as to the counsel in the High Court. 4. Similarly, if the sureties change their address(s),they will give in writing their changed address to the trial Court. 5. In case, the applicants have violated any condition, then the order of SOS shall be recalled and cancelled. 10. Misc. Application stands disposed of. 11. A copy of this order be sent to learned trial court through E- mail. (ASHOK KUMAR JAIN),J PREETI VALECHA /16-17