Surje Khan Sujia vs Uoi

In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.

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

Counsel for the appellant submits that the contraband in-question was recovered from Gani Khan & Anand Singh.

Counsel for the appellant further submits that Anand Singh & Gani Khan were supplied contraband by Gordhan Ram and Gordhan Ram was given

contraband by Ramrakh, who received the supply from Pakistan.

Counsel for the appellant further submits that the appellant has been arrayed as accused on count of the fact that he called Gani Khan to involve

Gordhan Ram for enabling the consignment of contraband to reach inside Indian territory.

Counsel for the appellant further submits that the appellant is a 72 years old person and is unlikely to commit any offence in future.

Counsel for the appellant highlights custody period i.e. 10 years, 01 month and 07 days. He, therefore, prays that the sentence awarded to the

appellant by the trial court may be suspended during pendency of the present appeal.

Counsel for the appellant has relied upon the judgment of Hon'ble Apex Court in the cases of Thana Singh Vs. Central Bureau of Narcotics reported

in (2013) 2 SCC as well as Mayuresh Nandkumar Purohit Vs. Kaushik Manna & Anr., reported in 2018 Cr. L.R. (SC) 251.

Counsel for the appellant relied upon judgment of Hon'ble Apex Court in Balwinder Singh Vs. Assistant Commissioner, Customs & Central Excise,

reported in 2005 SCC (Cri.) 1092 for drawing attention of Court to the law laid down that custody period is relevant. Counsel for the appellant has

further relied upon the judgment of Hon`ble Apex Court in Surinder Kumar Khanna Vs. Intelligence Officer Directorate of Revenue Intelligence,

reported in 2018(3) R.Cr.D.188 (SC).

Counsel for the appellant has also drawn attention of this Court to order dated 22.02.2018 passed by this Court in S.B. Suspension of Sentence

(Appeal) No.53/2018 in the matter of Gordhan Ram Vs. Union of India (Ncb), whereby the sentence awarded to Gordhan Ram has been suspended.

Mr.MR Pareek, Learned Special Public Prosecutor, vehemently opposed the application on the ground that age and prolong custody cannot be a

criteria for any leniency on the part of Court for suspending the sentence of an accused.

Learned Special PP further submits that Section 32-A of the NDPS Act prohibits any suspension of sentence.

Learned Special PP relied upon judgment of Dadu Vs. State of Maharashtra, reported in 2000 Drugs Cases 494 (SC) wherein Hon`ble Supreme

Court declared Section 32-A unconstitutional to the extent it takes away right of the court to suspend the sentence of a convict under the Act and held

that the Appellate Court can suspend sentence under the Act strictly subject to the conditions spelt out in Section 37 of the Act.

Learned Special PP further submits Section 37(1)(b)(ii) says that where Public Prosecutor opposes the application, the Court has to satisfy that there

are reasonable grounds for believing that the accused is not guilty of such an offence and that he is not likely to commit any offence while on bail.

Learned Special PP further submits that consideration of application shall be detrimental under the NDPS law, particularly, when the present appellant

himself was kingpin in the incident and arranged contraband in-question, even though, the contraband was not actually seized from him.

On going through record and upon hearing the submissions made by counsel for the parties, this Court is of the view that neither custody of ten years

nor age of 72 years alone would be the reason sufficient to suspend the sentence. Non-recovery of contraband from conscious possession of present

appellant entitles his release on bail, particularly, when co-accused Gordhan Ram, who was in the chain of events, though, contraband was not

recovered from him, his sentence has been suspended. This Court is bound to consider other factors which cumulatively have the impact upon the

decision making of this Court. This Court takes cumulative note of custody of 10 years; the appellant being of 72 years old; contraband having not

been recovered from the appellant directly and last but not the least sentence of co- accused Gordhan Ram has been suspended. Case of Gordhan

Ram if not equivalent but is atleast similar to the extent that from both Gordhan Ram and present appellant, recovery of contraband is not there.

Having considered all the facts and circumstances of case, without making any observation on the merits of case, we are inclined to suspend the

sentence of the appellant(s).

Accordingly, this application for suspension of sentences is allowed and it is directed that the sentences awarded to appellant/s - Surje Khan Sujia S/o

Karim Khan by the learned Special Judge, NDPS Act Cases, Jodhpur vide by his judgment dated 10.8.2015 in Sessions Case No.119/2010 shall

remain suspended till final disposal of the aforesaid appeal and he shall be released on bail subject to the conition that he shall deposit 50% of the fine

amount imposed by the learned trial court, within four weeks, and upon his furnishing a personal bond in the sum of Rs.1,00,000/- with two sureties of

Rs.50,000/- each to the satisfaction of learned trial court for his appearance before this Court on 25.02.2021 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.