[2025:RJ-JP:10297] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc 2nd Suspension Of Sentence Application No. 347/2025 in S.B. Criminal Appeal No. 1968/2018 Arun Kumar Pandey S/o Jaleshwar Pandey, Aged About 34 Years, R/o Duboli, Post Dularpur Police Station Gahrani, Teshil Araa, District Bhojpur, Bihar. (At Present Accused Petitioner Is Confined In Central Jail, Dausa). ----Petitioner Versus Union Of India ----Respondent For Petitioner(s) : Mr. Deepak Chauhan For Respondent(s) : Mr. Tej Prakash Sharma, Special PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 06/03/2025 1. Instant second SOS application is preferred by petitioner accused Arun Kumar Pandey for suspension of sentence in pending appeal against conviction and sentence order dated 18.08.2018 in sessions case no. 25/2017 passed by learned Special Judge (NDPS Act) cases, Dausa. 2. Learned counsel appearing for appellant accused while referring the order dated 13.12.2023 in SLP (Criminal) no. 10418/2023 passed by Hon’ble Supreme Court has submitted that the order had been communicated to this Court by Hon’ble Supreme Court and duty lies upon this Court to consider the appeal on merits within one year. He further submits that the accused petitioner is not under any obligation to file this order on record. He aggressively submitted that this Court has not considered this fact on 24.02.2025, while adjourning the matter. [2025:RJ-JP:10297] (2 of 12) [SOSA-347/2025] He further submits that after communication of the order passed by Hon’ble Supreme Court, the appeal of petitioner was not decided within a period of one year, therefore, he is entitled to be released on bail pursuant to abovementioned order. He further referred to judgment dated 29.01.2025 in case of NCB Vs. Lakhwinder Singh 2025 INSC 190 and submitted that petitioner is entitled to be released on bail as he has already served substantial part of the maximum sentence awarded to him. The attitude and behaviour of counsel was to aggressive while concluding his arguments. 3. Above contentions were opposed by learned Special Public Prosecutor and he submitted that unless the Court is satisfied with the conditions as laid down in Section 37 of NDPS Act, instant SOS cannot be allowed. He further referred the order dated 10.04.2023 passed by this Court and submitted that the merits of the case were considered by this Court in detail and the order was upheld by Hon’ble Supreme Court. 4. Heard learned counsel for petitioner and learned Public Prosecutor. Perused the entire record. 5. The facts giving rise to instant criminal appeal indicate that on 28.12.2016 around 8:30 p.m. a truck bearing no. RJ29 GA 2218 was intercepted at Basedi across road wherein 7 gunny bags of Cannabis were found and contraband measuring 130kg which is commercial quantity was recovered. It was found that Mahesh Kumar was driver of truck and accompanied by present petitioner Arun Kumar. The agency has found that both the accused were found in possession of contraband at the time of [2025:RJ-JP:10297] (3 of 12) [SOSA-347/2025] interception. Thereafter proceedings were concluded out at spot, before proceeding to camp office. 6. Thereafter, an FIR was registered by NCB and a charge-sheet was filed against Arun Kumar, Mahesh Kumar and Dinesh Kumar under Sections 8/20, 25 and 29 of NDPS Act. After trial accused Arun Kumar and Mahesh Kumar were convicted under Sections 8/20 (c) of NDPS Act whereas Dinesh Kumar was acquitted. After conviction Arun Kumar and Mahesh Kumar were sentenced to undergo rigorous imprisonment of 10 years with fine of ₹1,00,000/- each. 7. First SOS application of Arun Kumar and Mahesh Kumar was considered by this Court and same was dismissed on 10.04.2023, with detailed order. 8. This Court while considering the application for SOS has observed as under: “The instant case is an application for suspension of sentence which was filed in year 2018 and since then no efforts were made on the part of appellant for disposal of the application. When the Court perused the original appeal which had been listed since 31.10.018, time is sought by appellant on most of the occasions and the matter was ultimately adjourned. When the matter was before this Bench on 08.03.2023, close relatives of appellant were present and they had prayed for early hearing of appeal due to which this Court had directed the matter to be listed on priority basis but unfortunately instead of argument on merits, learned counsel pressed hard for SOSA. It took almost 5 years to admit the appeal and now the question is whether learned counsel for appellants are ready for arguments on appeal. When specific questions were asked on merits, the [2025:RJ-JP:10297] (4 of 12) [SOSA-347/2025] learned counsel appearing on behalf of both the appellants have categorically made a statement that they are pressing only and only application for suspension of sentence. Here in this case, when appellants themselves are responsible for delay, so how can he seek equity. 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 Court laid down the parameters for suspension of sentence and observed that:- "a. The appellate court, if inclined to consider the release of a convict sentenced to punish- ment for death or im- prisonment for life or for a period of ten years or more, shall first give an opportunity to the pub- lic prosecutor to show cause in writing against such release. b. On such opportunity being given, the State is required to file its ob- jections, if any, in writ- ing. c. In case the public prosecutor does not file the objections in writ- ing, the appellate court shall, in its order, spe- cify that no objection had been filed despite the opportunity granted by the court." Prior to aforesaid, learned Apex Court in case of Kishori Lal Vs. Rupa AIR 2005 SC 1481 has laid down that appellate Court is under [2025:RJ-JP:10297] (5 of 12) [SOSA-347/2025] 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. When we look at the present matter, it is clearly indicated that on 28.12.2016 around 8.30 P.M. a truck bearing No. RJ-29GA-2218 was stopped at Basadi cross-road wherein seven gunny bags of cannabis were found and total weight of contraband was 130Kg which is a commercial quantity. It was also found that truck was driven by Mahesh Kumar and was accompanied by Arun Kumar who are appellants before the Court. The evidence so led before learned trial Court has clearly indicated that both the appellants were found in the truck at the time of interception and in their presence, entire proceeding of search and seizure was conducted by department officials, thus the fact is also based on direct evidence adduced by the prosecution before learned trial Court. The appellants were not allowed the benefit of bail during trial so during entire trial, they remained in custody and after conviction, they preferred this appeal and till now they are in custody and were found guilty under Section 8/20 of NDPS Act and sentenced individually with rigorous imprisonment of 10 years with fine of Rs.1,00,000/- each. One of the orders cited by learned counsel for appellants indicated that brother of appellant Arun Kumar was also found guilty in Sessions Case No. 1/2021 passed by Special Judge (NDPS Act Cases), Sikrai, District Dausa and the order of conviction and sentence dated 17.12.2022 was suspended in S.B. Criminal Misc. Application for Suspension of Sentence No. 135/2022 in Criminal Appeal No. 201/2022. It indicated [2025:RJ-JP:10297] (6 of 12) [SOSA-347/2025] that brother of appellant, Arun Kumar S/o Jaleshwar Pandey whose name is Tantan Pandey s/o Jaleshwar Pandey was also convicted under NDPS Act. Though, this has got no relevance but it has a lot to communicate. Here in this case, the recovery of contraband article is of commercial quantity and it is mandatory on the part of this Court to observe conditions and limitations as prescribed under the law. In the case of Ramnik Singh Vs. Intelligence Officer (supra) and Mayuresh Nandkumar Purohit Vs. Kaushik Manna (supra), Hon’ble Supreme Court has allowed suspension of sentence on the ground that hearing of appeal will take lot of time but herein we have offered to hear the appeal on merits but same was not argued on merits. Thus, these judgments are not applicable in present case. Similarly in the case of Boota Singh & Ors. Vs. State of Haryana (supra), Hon’ble Apex Court while deciding the appeal on merits, observed non-compliance which is not in the case at this interim stage. This Court could not observe non- compliance of law which will impact the final outcome of appeal. Similarly in the case of Union of India Vs. Leen Martrin & Anr. (supra), reference was made regarding statement under Section 67 of NDPS Act which is again the matter on merits but this case is of direct evidence as both appellants were present in the truck carrying contraband goods, hence this judgement is also not applicable in this case. As regard to Mossa Koya K.P. Vs. State (NCT of Delhi) (supra) is concerned, the appellant before Hon’ble Supreme Court was convicted under Section 29 of NDPS Act whereas other who were charged directly were in fact acquitted but here in this case, both the appellants are charged [2025:RJ-JP:10297] (7 of 12) [SOSA-347/2025] directly with the possession and were found in conscious possession of contraband goods, hence this judgment is not applicable in this case. Again in the case of Sabir Vs. State of Madhya Pradesh and Anr.(supra), Hon'ble Apex Court while referring Tofan Singh Vs. State of Tamil Nadu (supra) held that statement under Section 67 cannot be relied upon but herein, we are not considering to rely upon statement under Section 67 of NDPS Act, thus this judgment is also not applicable in this case. As regard to other judgment of this Court is concerned, the matter has already been considered by Division Bench of this Court in case of Daulat Singh @ Gatu Vs. State of Rajasthan (supra), and on that basis, application for suspension of sentence was rejected in the case of Avantika Vs. State of Rajasthan (supra) by Co-ordinate Bench of this Court. Thus, none of the aforesaid judgements are applicable of this Court. Herein, I do not find any reason to release appellants on bail after allowing application for suspension of sentence on the ground that they have already undergone six years in custody. Present matter is of contraband article “Cannabis” which is commonly used a menace of drugs addiction. Hon'ble Apex Court while dealing with constitutional validity of Section 32A of NDPS Act in case of Dadu @ Tulsidas Vs. State of Maharashtra (supra) has clearly indicated that to check menace of drugs flooding the market, the Parliament has provided that persons accused of offences under NDPS Act should not be released on bail during trial unless the [2025:RJ-JP:10297] (8 of 12) [SOSA-347/2025] mandatory conditions under Section 37 of NDPS Act are satisfied. Considering the entire set of evidence as being laid down before learned trial Court, this Court finds that mandatory provisions are not followed in the instant case. There is no personal search as the entire contraband and was found in seven gunny bags. Similarly, there was no mandate under the law to obtain search warrant from any Court or Magistrate. No one can doubt either of public servants unless there are reasons on the ground to doubt the bonafides of search and seizure officers. Herein, no suggestion or statement was made with respect to the fact that from where these individuals had purchased the 130Kg cannabis and transported. Here in this case, none of the appellants have made a statement before the Seizing Officer that they were peddlers only and actually a driver or cleaner. They were carrying the goods and if no suggestion is made then obviously direct responsibility lies on appellants and if they fail to discharge the burden of proof as provided under Section 106 of Indian Evidence Act then it cannot be pleaded by appellants that they are drivers or cleaner only.” 9. 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 judgments as referred hereinabove clearly indicate that this Court has to satisfy first about compliance with 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 [2025:RJ-JP:10297] (9 of 12) [SOSA-347/2025] accused, role of accused and antecedents and criminal history of accused. 10. Herein this case, the quantity recovered from accused is of commercial quantity, therefore, satisfaction under Section 37 of NDPS Act is mandatory. No where it has been provided that on basis of period of incarceration, the rigour of Section 37 of NDPS Act deemed to be satisfied. 11. 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. 12. Having gone through the material placed on record, a fact is quite apparent that as per certificate, the petitioner has served nearly 8 years, one month and 21 days out of 10 (ten) years but the petitioner is serving sentence in open air camp and not in regular central jail. The benefit of reformation has already been provided to the petitioner accused by the prison authority. The [2025:RJ-JP:10297] (10 of 12) [SOSA-347/2025] concept of open air prison was introduced in Rajasthan with the aim to rehabilitate the prisoners into society and the petitioner is already enjoying the fruits of the reformative scheme. 13. The counsel vigorously and aggressively argued on non- compliance of order dated 13.12.2023 by the bench having roster to consider and hear criminal appeals. He raised an issue that when the order was enclosed in file then the duty lies upon judge to consider the direction in the order and if appeal has not been decided then petitioner be released on bail immediately. 14. Herein this case, when this SOS application was filed on the ground that after one year the appeal of present petitioner accused was not considered for hearing so petitioner is entitled to secure SOS/bail. The discussion made hereinabove clearly reflects that the prerequisite condition of compliance of Section 37 has not been complied with in the matter. 15. In case of NCB Vs. Lakhwinder Singh (supra), Hon’ble Supreme Court while considering the provision of Section 37 of NDPS Act observed that if compliance of provision of Section 37 of NDPS Act is to be insisted then it may amount to denial of benefit of bail. 16. We have considered judgment of Larger Bench and also equal strength Benches of Hon’ble Supreme Court and also in case of NCB Vs. Lakhwinder Singh (supra). Hon’ble Supreme Court was considering criminal appeal filed by NCB against grant of bail, when the High Court has allowed the bail but herein we are considering second SOS application, therefore, the judgment in case of Lakhwinder Singh (supra) is not applicable to the facts of present case. [2025:RJ-JP:10297] (11 of 12) [SOSA-347/2025] 17. A perusal of record indicates that the order dated 13.12.2023 was received in registry on 02.01.2024 but at no point of times this order placed before any Bench for considering this appeal on merits, during last one year. 18. Hon’ble Supreme Court while dismissing the SLP (Criminal) has observed as under: “The petitioners are at liberty to request the High Court for expeditious disposal of the pending criminal appeal. If appeal continues to remain pending for one year or more, the petitioners are at liberty to reiterate their bail prayer.” 19. The aforementioned clearly indicates that a request is required to be made by the petitioner(s) and there is no application filed by present petitioner for early consideration of appeal during last one year. The counsel without reading the order has made his arguments. Till date no such prayer was made to consider appeal on merits, therefore, this Court cannot consider that despite order dated 13.12.2023, the appeal of petitioner was taken up on Board for consideration on merits. 20. In view of the above, I am of the considered view that no case for bail is made out as menace of drugs is increasing day by day ruining the younger generation and traffickers like present petitioner are reaping the fruits, therefore, looking towards gravity and heinousness of the offence, the present SOS is liable to be dismissed. 21. In view of aforesaid, the present SOS application is hereby dismissed. [2025:RJ-JP:10297] (12 of 12) [SOSA-347/2025] 22. The Registrar (Judicial) is directed to place a copy of this order before Hon’ble the Chief Justice of this Court. (ASHOK KUMAR JAIN),J CHETNA BEHRANI /1