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Judgment
Accused-appellant has laid this fourth application for suspension of sentence handed down by learned trial Court while indicting her for offence punishable under Section 8 read with Section 19 of the NDPS Act.
The prosecution filed a complaint against accused-appellant inter-alia on the ground that she, as licencee to cultivate opium, violated the terms of licence and the usufruct derived from cultivation of opium plants was embezzled by her. It is also alleged that she has manipulated and contaminated the opium which was cultivated and handed over the same to the authorities. Learned trial Court, upon consideration of evidence and other materials available on record, found the appellant guilty for the charged offence and awarded sentence of 10 years' rigorous imprisonment with fine of Rs.1,00,000/-.
It is argued by learned counsel for the appellant that during trial she was on bail and after conviction she has already suffered sentence of almost 16 months. Learned counsel further submits that appellant is a woman of about 66 years age, therefore, in the matter of suspension of sentence a benevolent and lenient view may be taken by the Court. It is also submitted by learned counsel that besides conviction in the instant case, there is no other criminal antecedents of the appellant. Learned counsel has argued that the instant appeal was filed in the year 2017, and therefore, final hearing of the appeal is unlikely in near future. Lastly, learned counsel has contended that in identical situation, considering the status of the accused as lady, coordinate Benches have granted indulgence by suspending the sentence. In support of this argument, learned counsel has placed reliance on S.B. Suspension of Sentence (Appeal) Nos.898/2017, 999/2017, 678/2018, 879/2017, 878/2017, 907/2017, 930/2017, 537/2018, 538/2018, 429/2018, 428/2018, 897/2017, 933/2017.
Per contra, learned Special Public Prosecutor, Mr. N.K. Rai, has vehemently opposed the application for suspension of sentence. It is argued by Mr. Rai that case in hand is a glaring example of embezzlement of opium, and therefore, considering the quantity of embezzled opium, which is above commercial quantity, Section 37 of the NDPS Act is clearly attracted.
I have bestowed my consideration to the arguments advanced at Bar and perused the material available on record.
Having regard to the facts and circumstances of the case and taking into account the status of accused-appellant as woman, I feel persuaded to accept this fourth application for suspension of sentence.
Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by learned Special Judge, NDPS Cases, Bhilwara, vide judgment dated 31.10.2017 & 14.11.2017, in Sessions Case No.11/2015 against appellant-applicant Smt Shanti Bai W/o Sh. Shobha, shall remain suspended till final disposal of the aforesaid appeal and she shall be released on bail subject to the condition that she executes a personal bond in a sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of learned trial Judge for her appearance in this Court on 26.04.2019 and whenever ordered to do so till disposal of the appeal, on the conditions indicated below:-
That she will appear before the trial Court in the month of January every year till the appeal is decided.
That if the applicant changes the place of residence, she will give in writing his changed address to the trial Court as well as to the counsel in the High Court.
Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.
The learned trial Court shall keep the record of attendance of accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused- applicant was 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 purposes relating to pendency and disposal of cases in the trial Court. In case the said accused-applicant does not appear before the trial Court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.