Virender Singh, J.
Crl.Appeal No. 1442-SB of2005
Admitted.
Crl.Misc.No.46239 of 2005.
Pursuant to notice State counsel has put in appearance.
1. Heard.
2. Sentence of fine shall remains suspended during the pendency of appeal.
3. Mr.Malik submits that the appellant is also praying for suspension of sentence. A prayer is made in the grounds of appeal itself.
4. Since notice of motion is issued to the State in the main appeal for today, therefore, the State counsel is also heard with regard to suspension of
sentence also.
5. Mr.Malik submits that the recovery allegedly effected from the applicant-appellant is 1 kg. Charas when on 16.1.2004 he was apprehended by
the police. He now stands convicted for the said recovery vide impugned judgment dated 2/4.7.2005 of the learned Single Judge, Sonepat and
sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/-.
6. Mr.Malik submits that the recovery of 1 kg. of Charas falls under the head ''non-Commercial Quantity'', but the learned trial Court has
considered it as ''Commercial Quantity''. He has drawn my attention to the observation of the trial Court in this regard. In support of his
contentions, learned counsel has also relied upon a Full Bench judgment of Himachal Pradesh High Court, rendered in the case of Ratto v. State of
Himachal Pradesh, 2003 (3) CCC 413 (H.P.): 2004(1) RCR(Cri.) 501 (FB) and two judgments of this Court, rendered in the case of Shamsher
Singh @ Papu v. State of Haryana, 2003(3) RCR(Cri.) 785 and Sikander Singh v. State of Punjab, 2005(3) CCC 435 (P&H): 2005(2)
RCR(Cri.) 810. The learned counsel submits that in this eventuality, the applicant-appellant can be sentenced for less than 10 years as no minimum
sentenced is provided under the statute. The learned counsel the submits that the amended Act which has drawn the distinction between the ''small
quantity'' and the ''commercial quantity would apply to the instant appeal.
7. Mr.Malik has also pointed out certain infirmities in the case of the prosecution.
8. Besides, the abovesaid submissions, it is stated that the applicant-appellant, by now, has undergone about 2 years of his substantive sentence. In
support of his contentions, learned counsel relies upon the jail custody certificate dated 25.8.2005 issued by Superintendent, District Jail, Sonepat.
9. On the basis of the above submissions, learned prays for suspension of substantive sentence during the pendency of instant appeal.
10. Prayer is opposed by now, has already undergone 2 years of his substantive sentence and even if the conviction of the applicant-appellant is
upheld by this Court, he can be sentenced for less than 10 years, as for non-commercial quantity, no minimum sentence is prescribed. So is the
position with regard to sentence of fine also. The aforesaid facts coupled with the fact that the instant appeal is not likely to be heard in near future
on account of heavy pendency, in my view, entitle the applicant-appellant to the concession of suspension of substantive sentence.
11. Substantive sentence imposed upon the applicant-appellant is hereby suspended during the pendency of appeal and he is ordered to be
released on bail on his furnishing bail bonds to the satisfaction of Chief Judicial Magistrate, Sonepat.
