Hon'ble RATHORE, J. - (1.) HEARD the learned counsel for the parties on the application under Section 389 Cr.P.C. for suspension of sentence imposed by Special Judge of NDPS Cases, Jaipur.
(2.) LEARNED counsel for the accused-appellant has raised the following contentions: Firstly; there is no discussion in the judgment about the evidence against the appellant. Secondly; the conviction awarded to the appellant is based only on the statement recorded under Section 67 (Ex. P/24) of the NDPS Act, 1985. He has also submitted that the accused-appellant only knows Bangali' whereas the statement has been recorded in English language. Thirdly; it has been submitted that the person who has recorded the statement was not competent to do so under law. Fourthly; it has been submitted that complainant had told a lie and, therefore, he is not to be relied. The learned counsel for the appellant has referred to the evidence on record and tried to substantiate his arguments. On the contrary, learned Special Public Prosecutor has seriously opposed the bail application and submitted that even though the recovery was not directly made from the present appellant, but he is the main person in the entire show and that is why the learned trial Court has convicted him for the offence inter alia under Section 27-A of the Act. Further, he has submitted that it was the present appellant who had not only made all the arrangements in respect of the commission of the crime but he had also financed for the same. Therefore, he has submitted that even at the stage of bail/suspension of sentence this Court has to consider the matter in its entirety and has heavily relied upon the paras No. 15 & 16 of the case of Union of India vs. Rattan Malik @ Habul (2009) 9 SCC 624. Further, so far the objection regarding recording of statement under Section 67 of the Act is concerned, the learned Public Prosecutor has referred to paras No. 29 to 30 of the impugned judgment and submitted that learned Court below has elaborately discussed this objection and there is no illegality or infirmity in the same. In the last, he has answered the objection of the counsel for the appellant in respect of the competency of the person who had recorded the statement of the accused-appellant under Section 67 of the Act by relying upon a notification No. S.O. 822(E), dated 14.11.1985, which clearly states that officers above the rank of Sub-Inspector in the Departments of Narcotics, Revenue Intelligence and in Central Economic Intelligence Bureau and Narcotics Control Bureau are authorized to exercise the power and to perform the duties specified in Section 42 which includes the duties to enter, search, seize and arrest without warrant of authorization and equally to exercise the powers conferred under Section 67 of the Act, which includes the powers to call for an information or the power to record the statements. Therefore, he has submitted that the application for suspension of sentence filed by the accused-appellant deserves to be dismissed. I have given my anxious and thoughtful consideration to the sub- missions made by the learned counsels for the rival parties. The basis of the prosecution case on which instant proceedings were initiated is as follows: JUDGEMENT_1936_RAJLW3_2011Image1.jpg JUDGEMENT_1936_RAJLW3_2011Image2.jpg As regards, the submission made by the learned counsel for the accused-appellant that the only basis of conviction of the present appellant is the statement under Section 67 of the Act, this Court had already considered the same while dismissing the bail application of co-accused Shafi @ Gabba vs. State of Rajasthan (Suspension Application No. 1197/08) decided on 23.7.2010 wherein the same contention was considered in the light of the principle laid down by Hon'ble Supreme Court in the case of Ratan Kumar Vishwas vs. State of Uttar Pradesh & Anr., (2009) 1 SCC 482 and Union of India vs. Rattan Mallik @ Habul (supra). Further, it may be observed that the contentions raised by the counsel for the appellant with regard to discussions in the impugned judgment in respect of the present appellant; objections with regard to complaint etc. etc. are matter to be considered at the time of final hearing of the appeal. It would not be appropriate for this Court to go into such contentions at the time of deciding suspension application because it will have to refer to the evidence on record and that may harm the case of either party at the time of final hearing. The Hon'ble Supreme Court while dealing with the question of recovery of contraband from the possession of the accused, observed in the case of Rattan Mallik (supra) in paras No. 15 & 16 as under:- "15. Bearing in mind the above broad principles, we may now consider the merits of the present appeal. It is evident from the afore- extracted paragraph that the circumstances which have weighed with the learned Judge to conclude that it was a fit case for grant of bail are (i) that nothing has been found from the possession of the respondents; (ii) he is in jail for the last three years, and (iii) that there is no chance of his appeal being heard within a period of seven years. In our opinion, the stated circumstances may be relevant for grant of bail in matters arising out of conviction under the Penal Code, 1860 etc. but are not sufficient to satisfy the mandatory requirements as stipulated in clause (b) of sub-sec. (1) of Section 37 of the NDPS Act. 16. Merely because, according to the learned Judge, nothing was found from the possession of the respondent, it could not be said at this stage that the respondent was not guilty of the offences for whteh he had been charged and convicted. We find no substance in tie argument of learned counsel for the respondent that the observation of the learned Judge to the effect that "nothing has been found from his possession" by itself shows application of mind by the learned Judge tantamounting to "satisfaction" within the meaning of the said provision. It seems that the provisions of the NDPS Act and more particularly Section 37 were not brought to the notice of the learned Judge." Having regard to the facts and circumstances of the case; the convic- tion and sentence awarded to the accused-appellant; the manner in which offence has been committed and the role of the present appellant therein and the fact that the suspension application of the co-accused Shafi @ Gabba (supra) has been dismissed by this Court, I do not find any just reason for suspending the sentence of the appellant during the pendency of the appeal.
(3.) CONSEQUENTLY, the application for suspension of sentence is dismissed.;