Om Prakash And Ors vs State Of Rajasthan

Heard learned counsel for the parties and perused the impugned order.

Learned counsel for the applicants has submitted that the trial court has grossly erred in convicting and sentencing the applicants for the charge of

transporting narcotic contraband poppy straw above commercial quantity. It is further submitted that as per the prosecution story, the police seized a

turbo truck in an abandoned condition and during search, they have seized 18 bags filled with poppy straw weighing 434 kgs. It is also submitted that

the police after thorough investigation have found that the truck, from which, narcotic contraband was recovered is registered in the name of co-

accused Ramniwas. The police have arrested Ramniwas, who during the course of investigation, has submitted that at the time of incident, the truck

was driven by applicant - Jagdish whereas, applicant - Om Prakash was the cleaner of the truck. The police on the basis of the said statements have

arrested the applicants, thereafter, they were put to trial and the trial court convicted and sentenced them vide impugned judgment. It is argued that

the trial court is not justifying in convicting and sentencing the applicants for the charge of transporting poppy straw above commercial quantity

because as per the seizure memo Ex.2, the police have not taken out separate samples from all the 18 bags, but have only taken out samples after

mixing the whole narcotic contraband poppy straw i.e. 434 kgs. The Investigating Officer Indra Singh (PW-13) has also specifically stated that no

separate samples from each bag have been taken out, but the whole poppy straw filled in 18 bags was mixed and, thereafter, samples were taken out.

Learned counsel has also submitted that in none of the 18 bags, the filled in poppy straw was more than 50 kgs, which is above commercial quantity. It

is further submitted that when the separate samples have not been taken out from each bag, the applicants cannot be convicted for transporting poppy

straw above commercial quantity.

Learned counsel for the applicants has placed reliance on the decision of this Court rendered in the case of Netram Vs. State of Rajasthan, reported

in 2014(1) Cr.L.R. (Raj.) 163.

Learned Public Prosecutor has opposed the applications for suspension of sentences.

Having considered the facts and circumstances of the case, after going through the record of the trial court particularly, the seizure memo as well as

the statements of the Seizure Officer Indra Singh (PW-13) wherein, it is clear that no separate samples have been taken out from each bag filled in

with poppy straw and taking into consideration the fact that the applicants are in judicial custody for about five years, this Court is inclined to suspend

the sentences awarded to them.

Accordingly, the applications for suspension of sentences are allowed and it is directed that the sentences awarded to appellants - Om Prakash son of

Shri Ramu Ram and Jagdish son of Manak Ram by the Special Judge, NDPS Act Cases, Jodhpur by judgment dated 21.5.2016 shall remain

suspended till final disposal of the aforesaid appeals provided each of them executes a personal bond for a sum of Rs.50,000/- along with two solvent

sureties in the sum of Rs.25,000/- each to the satisfaction of the learned trial court for his/her/their appearance before this Court on 6.4.2021 and

whenever called upon to do so till the disposal of the appeal on the conditions inidcated below:-

(1) That he/she/they will appear before the trial court in the month of January of every year till the appeal is decided.

(2) That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial court as well as to

the counsel in the High Court. (3) Similarly, if the sureties change their address(s), they will give in writing their changed address(s) to the trial court.

The learned trial court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc.

Case related to original case in which the accused-applicant(s) was/were tried and convicted. A copy of this order shall also be placed in that file for

ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court.

In case the said accused-applicant(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for

cancellation of bail.