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HIGH COURT OF MADHYA PRADESH : BENCH AT
INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)
CRA No. 9448 of 2019
(Vishnudas V/s. State of M.P.)
Date: 01.04.2022 :
Shri Santosh Kumar Meena, learned counsel for the
appellant.
Shri Viraj Godha, learned Panel Advocate for the
respondent/State.
Heard the learned counsel for the parties on I.A. No.30148/2021, a repeat (2nd) application for suspension of custodial sentence awarded to the appellant. The appellant stands convicted as under :
Section & Act. Imprisonment Fine Amount Imprisonment
in lieu of
default of
payment of
fine.
8/18(b) of 10 year RI 1,00,000/- 6 months
NDPS Act. additional RI.
First application for suspension of the appellant was dismissed with liberty to revive after six months. Now the present repeat appeal has been filed only on the ground of completion of 7 years, 10 months of custodial sentence.
Learned counsel for the appellant submits that the present appellant has already undergone more than 50% of the jail sentence and there is no likelihood of final hearing of this appeal in near future and by that time, the appellant would complete the entire jail
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sentence. He is permanent resident of Ratlam and there is no question of his fleeing away from the city of Ratlam. No one is there in the family to earn the livelihood, hence the jail sentence be suspended.
On the other hand, the learned Panel Advocate appearing for the respondent/State opposes the prayer by submitting that the offence is a serious offence in which there is a minimum sentence of 10 years. No ground is available to the appellant for suspension of the jail sentence.
Recently, the apex Court in the case of Mossa Koya KP V/s. State (NCT of Delhi) [Cr. Appeal No.1562/2021 decided on 6.12.2021] has suspended the jail sentence after undergoing the 8 years out of the total 10 years jail sentence. Relevant paragraphs of the said judgment are reproduced below :
"12. We appreciate the submission of the Additional Solicitor General that offences under the NDPS Act are of a serious nature and the case is at the post conviction stage. Yet the Court cannot be unmindful of the fact that the appellant has undergone 8 years out of the total sentence of 10 years. The appeal is unlikely to be heard early. In all probability, the entire sentence would have been undergone by the time the appeal is heard. The decisions on the basis of which the High Court of Delhi has declined to grant suspension of sentence, are, at the highest, a broad guideline and cannot be placed on the same pedestal as a statutory interdict. With the pendency of the work in the High Court, it may not be feasible to expedite the disposal of the appeal within a short period.
13. In the circumstances, particularly, since the appellant has undergone 8 years out of ten years of the total sentence which has been imposed on him, we are of the view that a fit and proper case has been made out for the suspension of the sentence under Section 389 CrPC.
14. We accordingly allow the appeal and set aside the impugned order of the High Court. The sentence of the appellant shall stand suspended under Section 389 CrPC, subject to such terms and conditions as may be imposed by the Special Judge, NDPS, Patiala House Courts, New Delhi. The appellant would
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cooperate in the expeditious disposal of the appeal and shall not apply for adjournment when the matter is taken up."
In view of the aforesaid facts and circumstances of the case, I find it is to be a fit case to suspend the custodial sentence of the appellant.
Accordingly, I.A. No.30148/2021 is allowed and it is directed that subject to deposit of the fine amount, if already not deposited, with the trial Court and on furnishing personal bond by the appellant -Vishnudas in the sum of Rs.1,00,000/- (One Lakh only) with one solvent surety in the like amount to the satisfaction of learned trial Court for his appearance before the Registry of this Court, the execution of custodial part of the sentence of the appellant shall remain suspended till final disposal of this appeal. The proceedings against the surety are hereby dropped.
The appellant after being enlarged on bail shall mark his presence before the Registry of this Court on 12.10.2022 and on all such subsequent dates, which are fixed in this behalf.
In view of the above, I.A. No.30148/2021 also stands disposed of.
List for final hearing in due course.
C.C. as per rules.
(VIVEK RUSIA ) JUDGE Ajit/-
AJIT Digitally signed by AJIT KAMALASANAN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, KAMALASAN 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba241ef fad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61A1EE901C 09EF29, AN serialNumber=7F0BEE2D78BD57DA058F3247441C87E7E 0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN Date: 2022.04.01 18:30:27 +05'30'