Ombir Singh vs State

M.L. Mehta, J.—This order disposes of an application u/s 389 Cr. P.C. filed for suspension of sentence of the appellant and for his release on bail.

The appellant was convicted and sentenced vide judgment and order dated 11.03.2008 and 19.03.2008 respectively by Special Judge, Karkardooma District Courts, Delhi. He preferred appeal against the judgment and order which has since been admitted and is to be heard in due course.

The Learned Counsel for the appellant has contended for suspension of sentence and release of the appellant on bail stating that the appellant is in jail for almost 7 years, that the appellant has got very good case for acquittal inasmuch as no public witness was associated and that there was also tampering of sample. With regard to tampering of sample, it was submitted that the weight of counter-parts of the sample was 25 grams each whereas the sample which came to be analyzed was 28 grams.

On the other hand, learned Additional PP submitted that the sentence was earlier suspended vide order dated 15.12.2008. The appellant also filed an application u/s 389 Cr. P.C. whereupon he was directed to surrender before the Court vide order dated 28.07.2010. With regard to the merits of the case, she submitted that the contention regarding non association of public witness was specifically dealt by the trial judge while appreciating the testimony of PW-10 Bhoop Singh, who categorically stated that efforts were made to associate public witnesses but none agreed to join. With regard to the plea of discrepancy in the weight of sample, she submitted and rightly so that the 28 grams weight of the sample was its gross weight which included packing material. She also submitted that there was no reason for prosecution to have falsely involved the appellant in the present case inasmuch as he was resident of Etah and there could not be said to have enmity of Delhi Police with him.

Having heard both the counsel for the parties, I do not deem it a fit case for suspension of sentence. The appellant was convicted u/s 18(C) of NDPS Act for being found in possession of 5 kg of opium. It was recovered from his conscious possession. This was undoubtedly huge commercial quantity.

Without commenting on the evidentiary value of PW-10, it can, however, be noted that the case of the prosecution cannot be out rightly discarded or rejected merely on account of non joining of public witness. I also do not see any reason for the false implication of the petitioner in view of the fact that he was a resident of Etah. The sample which was analyzed had gross weight of 28 grams which was inclusive of packing material. The difference of three grams due to packing material in any case was insignificant.

Keeping in view the seriousness of the offence and also provisions of section 37 NDPS Act, I am not inclined to suspend the sentence or admit the petitioner on bail. The application is hereby dismissed.