Mahavir Singh vs State of Haryana

Virender Singh, J.

Crl. Appeal No. 1442-SB of 2005

Admitted.

Crl. Misc. No. 46239 of 2005.

Pursuant to notice State counsel has put in appearance.

Heard.

Sentence of fine shall remains suspended during the pendency of appeal.

Mr. Malik submits that the appellant is also praying for suspension of sentence. A prayer is made in the grounds of appeal itself.

Since notice of motion is issued to the State in the main appeal for today, therefore, the State counsel is also heard with regard to suspension of

sentence also.

Mr. Malik submits that the recovery allegedly effected from the applicant- appellant is 1 kg. Charas when on 16.1.2004 he was apprehended

by the police. He now stands convicted for the said recovery vide impugned judgment dated 2/4.7.2005 of the learned Single Judge, Sonepat and

sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/-.

Mr. Malik submits that the recovery of 1 kg. of Charas falls under the head `non-Commercial Quantity'', but the learned trial Court has

considered it as `Commercial Quantity''. He has drawn my attention to the observation of the trial Court in this regard. In support of his

contentions, learned counsel has also relied upon a Full Bench judgment of Himachal Pradesh High Court, rendered in the case of Ratto v. State of

Himachal Pradesh, 2004 (1) RCR (Crl.) 501 (FB) and two judgments of this Court, rendered in the case of Shamsher Singh @ Papu v. State of

Haryana, 2003 (3) RCR (Crl.) 785 and Sikander Singh v. State of Punjab, 2005 (2) RCR (Crl.) 810. The learned counsel submits that in this

eventuality, the applicant-appellant can be sentenced for less than 10 years as no minimum sentenced is provided under the statute. The learned

counsel the submits that the amended Act which has drawn the distinction between the `small quantity'' and the `commercial quantity would apply

to the instant appeal.

Mr. Malik has also pointed out certain infirmities in the case of the prosecution.

Besides, the abovesaid submissions, it is stated that the applicant- appellant, by now, has undergone about 2 years of his substantive sentence.

In support of his contentions, learned counsel relies upon the jail custody certificate dated 25.8.2005 issued by Superintendent, District Jail,

Sonepat.

On the basis of the above submissions, learned counsel prays for suspension of substantive sentence during the pendency of instant appeal.

Prayer is opposed by the learned State counsel on the ground that may be the recovery falls under the head `Non-Commercial Quantity'', but

the applicant-appellant does not deserve the relief prayed for.

The applicant-appellant, by now, has already undergone 2 years of his substantive sentence and even if the conviction of the applicant-

appellant is upheld by this Court, he can be sentenced for less than 10 years, as for non- commercial quantity, no minimum sentence is prescribed.

So is the position with regard to sentence of fine also. The aforesaid facts coupled with the fact that the instant appeal is not likely to be heard in

near future on account of heavy pendency, in my view, entitle the applicant-appellant to the concession of suspension of substantive sentence.

Substantive sentence imposed upon the applicant-appellant is hereby suspended during the pendency of appeal and he is ordered to be

released on bail on his furnishing bail bonds to the satisfaction of Chief Judicial Magistrate, Sonepat.

Petition allowed.