P.K. Lohra, J. - (1.) Heard learned counsel for the appellant as well as learned Public Prosecutor on the application for suspension of sentence. By the instant application under Section 389 Cr.P.C., 1973 applicant-appellant has craved for suspending the sentence handed down by Special Judge, NDPS Cases No.1, Chittorgarh (for short, 'learned trial Court'), by its verdict dated 13.07.2017. Learned trial Court, by the aforesaid verdict, convicted applicant-appellant for offence under Sections 8/18(b) and 8/19 of the NDPS Act and handed down maximum sentence of ten years' rigorous imprisonment with fine of Rs. 3,00,000/-, and in default of payment of fine to further undergo two year's rigorous imprisonment. It is also ordered by the learned trial Court that applicant-appellant would be entitled to benefit of Section 428 Cr.P.C., 1973 It is submitted by learned counsel that during trial applicant-appellant remained in custody for more than 5 years and after conviction also he is under custody, and therefore, by this time he has served sentence for more than five years and seven months. Learned counsel has further argued that besides the conviction in the instant case there is no criminal antecedent of the applicant-appellant showing his involvement in any offence under the NDPS Act. It is also argued by learned counsel that learned trial Court has not examined the validity of notice Ex.P4 under Section 50 of the NDPS Act, as mandated by law, inasmuch as, the Seizure Officer, while serving notice, has given option of Magistrate and Gazetted Officer besides his own option, which has prima facie vitiated the recovery. In support of his arguments, learned counsel has placed reliance on a decision of Supreme Court in State of Rajasthan v. ParmanandAnr.[(2014) 5 SCC 345].
(2.) With all these arguments, learned counsel has argued that the sentence handed down to appellant-applicant may be suspended. Learned Public Prosecutor has vehemently opposed the application for suspension of sentence. Having regard to the facts and circumstances of the case and considering the sentence awarded, I feel inclined to accept this application for suspension of sentence.
(3.) Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C., 1973 is allowed and it is ordered that the sentences passed by learned Special Judge, NDPS Act Cases No.1, Chittorgarh, vide judgment dated 107.2017, in Sessions Case No.68/2012 against appellant-applicant Shiv Lal Meena S/o Shri Kanhiya Lal, shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail subject to the condition that he deposits Rs. 1,00,000/- towards fine within four weeks and furnishes a personal bond in the sum of Rs. 1,00,000/- with two sureties of Rs. 50,000/- to the satisfaction of learned trial Judge for his appearance in this Court on 06.02017 and whenever ordered to do so till disposal of the appeal, on the conditions indicated below:- 1. That he will appear before the trial Court in the month of January every year till the appeal is decided. 2. That if the applicant changes the place of residence, he will give in writing his 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 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. ;