Thousands waiting 30 years: Why Rajasthan High Court freed NDPS convict citing backlog

The Rajasthan High Court ordered that the sentence passed by the trial court, against the appellant-applicant shall remain suspended till final disposal of the appeal. (Image enhanced using AI)

Findings

• It is ordered that the sentence passed by the trial court, against the appellant-applicant shall remain suspended till final disposal of the appeal.
• He shall be released on bail provided he executes a personal bond in the sum of Rs 50000 with two sureties of Rs 25000.
• The core consideration before the appellate forum must necessarily be whether the judgment of conviction and the consequent order of sentence are sustainable in the eyes of law.
• Where, prima facie, it appears that the conviction may be reversed and the appellant may be acquitted, the appellate court ought to suspend the sentence pending disposal of the appeal.
• Where, upon appreciation of evidence, it appears that the conclusions drawn by the trial court may be erroneous, the appellate court is duty-bound to consider such contentions.
• Where logical, legal and sustainable arguments are advanced assailing the findings, disclosing a strong and arguable case, again, the appellate court is duty-bound to consider those contentions.
• An appeal, in its true sense, is an extension of the trial, for the reason that additional evidence may be taken.
• The entire body of evidence is subject to re-appreciation on both factual and legal parameters.
• At this stage, the appellate court is empowered to set aside the conviction, modify it, remand the matter, or maintain the judgment, as the case may be.
• It is also to be borne in mind that in several cases, the conviction may ultimately be converted to a lesser offence.
• The propriety of the sentence imposed by the trial court, being within its discretionary domain may also require reconsideration.
• This is required to determine whether an adequate and proportionate sentence was imposed after due hearing on the point of sentence.
• These aspects, too, are open to re- examination at the appellate stage.
• Regarding the blatant disregard of Section 50 of the NDPS Act, it is evident in the present case that all the issues raised are vital in nature and carry sufficient force and substance.
• Section 50 of the Act includes safeguards related to searches for narcotics.
• It requires that an individual being searched must be informed of their right to be searched in the presence of a gazetted officer or a magistrate.
• If these issues are adjudicated in favour of the appellant, the possibility of acquittal cannot be ruled out.
• The grounds raised are appreciable and necessitate definitive adjudication.
• These grounds would require meticulous examination and re-appreciation of evidence.
• There exists a reasonable possibility that such exercise may ultimately ensure to the benefit of the appellant.

Decision

• Allowing the application, the high court ordered that Nimbaram’s sentence shall remain suspended till the final disposal of his criminal appeal.
• He was directed to be released on bail on furnishing a personal bond of Rs 50,000 along with two sureties of Rs 25,000 each.
• The court imposed strict conditions, including mandatory appearance before the trial court every January until disposal of the appeal, intimation of any change in address, and compliance with all directions of the court.
• It also directed the trial court to maintain a separate attendance record and to report any default to the high court for cancellation of bail.

Background

• Nimbaram, aged about 33 years and a resident of Jaitana village in Jodhpur district, was convicted by a trial court.
• Following his conviction, he approached the high court by filing a criminal appeal along with an application under Section 389 of the Code of Criminal Procedure (CrPC), seeking suspension of sentence during the pendency of the appeal.
• Section 389 of the CrPC empowers appellate courts to suspend a convicted person’s sentence and grant bail pending an appeal, ensuring protection against unnecessary incarceration.
• The appellant has been lodged in Central Jail, Jodhpur, since the passing of the judgment.

Petitioner’s defence

• Advocate SS Khichad, counsel for Nimbaram submitted that the appellant had been on bail throughout the trial and had never misused the liberty granted to him.
• The counsel contended that the appeal was not likely to be heard in the near future owing to the massive backlog of criminal appeals in the high court.
• Khichad said that substantial questions of law and fact were involved, particularly alleging blatant non-compliance with Section 50 of the NDPS Act, which provides mandatory safeguards to an accused during search and seizure.
• His counsel further argued that the trial court had failed to correctly appreciate both factual and legal aspects of the case and that the conviction suffered from serious infirmities requiring reappreciation of evidence by the appellate court.
• Such violations went to the root of the prosecution case and rendered the conviction legally vulnerable, said the counsel.

State’s opposition

• Opposing the plea, Additional Government Advocate Surendra Bishnoi, argued that once a person stands convicted, the presumption of innocence no longer survives.
• The prosecution submitted that offences under the NDPS Act are grave in nature.
• The AGA argued that suspension of sentence should not be granted as a matter of routine, particularly where the trial court has returned a finding of guilt after full appreciation of evidence.