AI Structured Summary
Not yet generated for this judgment
Judgment
Heard on IA No.2353/2020.
This is the first application filed under section 389(1) of the Cr.P.C for suspension of custodial sentence preferred by the appellant no.1 Nagma.
The applicant and her husband have been convicted under section 8/22 of the NDPS Act for having 660 gram Heroine in their illegal possession.
Learned counsel for the applicant began with the arguement that the applicant is in jail since last 5 years and has completed half of the sentence. Her husband is also in jail. She has been falsely implicated in the case as prior to the incident, she and her husband have made complaints against the investigating officer and to avenge, both the appellants have been falsely implicated in the case. The contraband was not confirmed in the first chemical analysis, therefore, the second sample was sent to Hyderabad, which confirmed the presence of Alprazolam in the substance seized from the appellants. This makes the prosecution case doubtful. It is further submitted that both the Panch witnesses Abhishek and Vijay have not supported the case of the prosecution. No other independent witnesses have been produced by the prosecution. The entire case of the prosecution is based only on the officials of the concerned department, who were interested in the conviction of the appellants. The conclusion of the appeal is likely to take time, therefore, her sentence be suspended.
Learned counsel for the respondent referred to a recent judgment of Hon'ble the Supreme Court rendered in the case of Sheru Vs. Narcotics Control Bureau CRA No.585/2020 dated 11/09/2020 and submitted that the Hon'ble Supreme Court has reiterated the view that the period of custody only cannot be a ground for suspension or any other relief for a convict who has been found guilty of some heinous crime like crimes punishable under NDPS Act.
It is further submitted that earlier the officials were suspecting that the substance seized from the applicant and her husband is Heroin but that was not confirmed in chemical analysis, therefore, with the permission of the Court second sample was sent to the CFSL, Hyderabad, who confirmed the presence of Alprazolam in the seized article. A revision was filed against the procedure adopted by the department for sending the second sample that has been dismissed by this Court with no further challenge to the order. The trial Court has dealt with this issue in para no.49 of the impugned judgment.
It is also averred that after receiving the information when the officials raided the house of the applicant, two bags containing 660 and 160 grams Alprazolam and Rs.51,130/- were recovered. The source or any document for establishing the legality of the possession of the seized contraband could not be produced.
It is settled law that the hostility of Panch witnesses does not affect the case of the prosecution, therefore, it is prayed that the suspension be not granted.
I have considered rival contention of the parties and have gone through the evidence produced by the prosecution as well as its appreciation done by the learned trial Court.
After going through the evidence produced before the learned trial Court, I do not find any substances in the ground taken by the applicant to suspend her imprisonment, therefore, IA No.2353/2020 stands dismissed.