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(2021) Law Today Live Doc. Id. 16106
in CRA-S-462 of 2020
Decided on: 31.03.2021
(Heard through V.C.)
Present:
Mr. J.S. Thakur, Advocate, for the applicant/appellant.
Ms. Rashmi Attri, AAG, Punjab.
Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22(c), 50 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 389 -- Suspension of sentence -- Applicant/appellant has already undergone a sentence of 3 years 3 months and 13 days, including remission -- Even if an accused waived off his right to have the search conducted in the presence of an Executive Magistrate or a Gazetted Officer, it is incumbent upon the police official to produce the accused before an Executive Officer or a Gazetted Officer -- Appeal is not likely to be heard in near future and also keeping in view the fact that the applicant has undergone considerable part of sentence, the application of the applicant/appellant accepted.
(Para 2-4)
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1. This is an application filed under Section 389 of the Code of Criminal Procedure seeking suspension of sentence of the applicant/appellant during the pendency of the appeal, who has been convicted and sentenced to undergo rigorous imprisonment substantially for a period of 10 years under Section 22 (c) of the NDPS Act.
2. Learned counsel for the applicant has submitted that the applicant/appellant has already undergone a sentence of 3 years 3 months and 13 days, including remission, as per custody certificate dated 29.3.2021, while further contending that the court below has failed to appreciate the fact that there was no compliance of Section 50 of the NDPS Act. Learned counsel would rely on the judgments rendered in Arif Khan @ Agha Khan Vs. State of Uttrakhand (2018) Law Today Live Doc. Id. 15101 = 2018 (2) RCR (Criminal) 931 as well out in Criminal Appeal D-319 DB of 2017, wherein it has been held that even if an accused has waived off his right to have the search conducted in the presence of an Executive Magistrate or Gazetted Officer, it is incumbent upon the official heading the raiding party to produce him before the nearest Executive Officer or a Gazetted Officer. This was not done in the present case and, therefore, the conviction of the applicant/appellant cannot be upheld.
3. On the other hand, learned counsel for the State would submit that conditions of Section 50 of the NDPS Act were duly complied with as the applicant/appellant himself had waived off his right to be searched in the presence of an Executive Magistrate, while reposing confidence in the official who had apprehended him.
4. I have heard learned counsel for the parties and without expressing any opinion on the merits of the case, keeping in view the law as settled by latest judgment in Arif Khan @ Agha Khan (Supra), wherein it has been held that even if an accused waived off his right to have the search conducted in the presence of an Executive Magistrate or a Gazetted Officer, it is incumbent upon the police official to produce the accused before an Executive Officer or a Gazetted Officer and the fact that the appeal is not likely to be heard in near future and also keeping in view the fact that the applicant has undergone considerable part of sentence, the application of the applicant/appellant is accepted and the remaining sentence of the applicant/appellant is suspended during the pendency of the appeal, subject to his furnishing bail/surety bonds to the satisfaction of Chief Judicial Magistrate/Duty Magistrate concerned.
Order accordingly.
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