[2025:RJ-JP:24280] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc 2nd Suspension Of Sentence Application No. 1152/2025 in S.B. Criminal Appeal No. 2323/2023 Mohar Singh @ Sonu Son Of Shri Belu Ram, Aged About 40 Years, Resident Of Tapru Bai Police Station Bhunter District Kullu Himachal Pradesh (Presently Confined In Central Jail Jaipur) ----Petitioner Versus State Of Rajasthan, Through Pp ----Respondent For Petitioner(s) : Mr. Rajveer Singh with Ms. Mamta Yadav For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 02/07/2025 1. The instant 2nd application for suspension of sentence is preferred in pending appeal admitted on 11.09.2023 and filed aggrieved from judgment of conviction and sentence dated 10.08.2023 in Sessions Case No.03/2018 passed by learned Special Judge (NDPS Act Cases), Jaipur Metro-I whereby appellant Mohar Singh was convicted for offence under Sections 8/20 read with 8/29 of NDPS Act and sentenced to undergo rigorous imprisonment of ten years with fine. 2 First SOS application no. 1238/2023 was dismissed as withdrawn on 21.04.2025 by this Court. Instant SOS application is second application. [2025:RJ-JP:24280] (2 of 5) [SOSA-1152/2025] 3. Learned counsel for the appellant while relying upon grounds of appeal submitted that the search and seizure team has failed to observe mandatory provisions under the NDPS Act at the time of search and seizure of contraband. He also submitted that before and after effecting search and seizure, provisions under Section 50 of NPDS Act were not followed. He specifically referred the defective notice served to complete formalities under Section 50 of NDPS Act and submitted that no opportunity was provided to present appellant to be searched before the Magistrate. He also referred the discrepancies and contradictions in the statement of witnesses and submitted that the independent witnesses, who turned hostile. He also referred the alleged recovery of contraband and submitted that there was a serious doubt about the net quantity of contraband which indicates towards faulty investigation. He further submitted that senior officials were not informed in time before effecting search and seizure by team. He also referred the document to submit that the age of present appellant is nearly 42 years and he was on bail during trial and disposal of appeal will take its own time, At last, he referred period of custody to claim SOS in the matter. 4. Aforesaid contentions were opposed by learned Public Prosecutor. He submitted custody certificate and same is taken on record. 5. Heard learned counsel for appellant and learned Public Prosecutor. Perused the record. 6. We have considered the evidence particularly the memos as referred by learned counsel for appellant and also considered the legal grounds including defective compliance of Section 50 of [2025:RJ-JP:24280] (3 of 5) [SOSA-1152/2025] NDPS Act, along with memo of recovery wherein 3.5kg charas was seized from conscious possession of appellant. As regard to FSL report is concerned, both sample packets were sent to FSL and opinion after examination shows that it contained dark green color solid substance and same found to be charas as prescribed under Section 2(iii)(a) of NDPS Act. In FIR or in seizure memo (Ex.P-51), the colour of substance was mentioned as black. The recovered quantity of charas in present case is more than 1 Kg, which is commercial quantity. 7. Hon’ble Supreme Court in case of Union Of India vs Rattan Mallik (2009) 2 SCC 624, State of kerala Vs. Rajesh (2020) 12 SCC 122, Dadu @ Tulsidas vs. State of Maharashtra (2000) 8 SCC 437, UOI Vs. Prateek Shukla (2021) 5 SCC 430 and UOI Vs. Nawaj Khan (2021) 10 SCC 100 has laid down that without compliance of provisions of Section 37 NDPS Act, no application for suspension of sentence can be allowed. Aforesaid was further affirmed by Hon’ble Supreme Court in the case of UOI Vs. Ajay Kumar Singh (2023) SCC Online 346. 8. The grounds raised by learned counsel for appellant can be considered only at the time of final submission and not now. 9. The purpose of Section 389(1) Cr.P.C. was considered by Hon’ble Supreme Court in several matters including in the case of Atul Tripathi Vs. State of UP reported in AIR 2014 SC 3062 wherein while magnifying the requirements of suspension of sentence, the Supreme Court laid down the parameters for suspension of sentence and observed that:- [2025:RJ-JP:24280] (4 of 5) [SOSA-1152/2025] "a. The appellate court, if inclined to consider the release of a convict sentenced to punish- ment for death or imprisonment for life or for a period of ten years or more, shall first give an opportunity to the public prosecutor to show cause in writing against such release. b. On such opportunity being given, the State is required to file its objections, if any, in writing. c. In case the public prosecutor does not file the objections in writing, the appellate court shall, in its order, specify that no objection had been filed despite the opportunity gran- ted by the court." 10. Prior to aforesaid, Hon’ble Supreme Court in case of Kishori Lal Vs. Rupa AIR 2005 SC 1481 has laid down that appellate Court is under an obligation to objectively assess the case so as to warrant suspension of sentence. The law over the point is quite clear and this Court has to opine and give reasons for allowing the application for suspension of sentence wherein the sentence is 10 years or more. 11. The maximum sentence awarded to present appellant is 10 years and till date he has served more than three years one month and twenty nine days. The period of sentence undergone by appellant is far less than 50%. Though, 50% of sentence is not a mandatory requirement but having considered the fact that 3.5 kg of charas was recovered from appellant accused and now-a- days the cases relating to illicit drugs or contraband are on rise. The young generation of the country is grippling in drug menace, therefore, this is not a fit case wherein this appellant accused be released on bail on any of the ground as mentioned by learned counsel for appellant. [2025:RJ-JP:24280] (5 of 5) [SOSA-1152/2025] 12. Accordingly, application for suspension of sentence is dismissed. 13. Misc. application stands disposed of. (ASHOK KUMAR JAIN),J CHETNA BEHRANI /47