Bombay High Court
Shubham S/O Satyaniwas Arjunwar vs State Of Mah.Thr. Pso Ps Wathoda ... on 24 November, 2021
Bench: V. G. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPA) NO. 559/2021 IN
CRIMINAL APPEAL NO. 406/2021
(Shubham S/o Satyaniwas Arjunwar Vs. State of Maharashtra)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri S. V. Bhutada, Advocate for applicant.
Shri A. R. Chutke, APP for non-applicant/State.
CORAM : VINAY JOSHI, J.
DATED : 24.11.2021.
Heard
2. This is an application seeking suspension of
execution of sentence passed in Sessions Trial No.
329/2021 by the Additional Sessions Judge - 7, Nagpur
vide judgment dated 04.09.2021. The Trial Court held
applicant (accused No.l) guilty for offence punishable
under Section 420 of the Indian Penal Code and sentenced
to suffer rigorous imprisonment for five years and to pay
fine of Rs. 5000/- with default clause.
3. It is the prosecution case in short that on receipt
of secret information, the Police have intercepted
applicant who was allegedly black marketing of
Remdesivir vial badly needed in pandemic situation. The
prosecution has examined total 15 witnesses to establish
the levelled charge. Co-accused Jyoti was also convicted
by the Trial Court for offence punishable under Sections
381 and 420 of the Indian Penal Code. It was alleged that
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Jyoti was serving as a Staff Nurse in Gayakwad Hospital
who has allegedly stolen Remdesiver vial and had handed
over to the applicant for sale on higher prices.
4. Learned counsel for the applicant submitted that
though the prosecution has examined 15 witnesses, the
Trial Court failed in appreciating the evidence of seizure in
proper perspective. He took me through the evidence of
PW-3 panch witness and along with PW-7 a Police person
to impress that Seizure Panchanama (Exh. 14) was tainted
since it was prepared at Police Station. It is the
submission that the entire case of prosecution is mainly
based on the point of seizure of Remdesiver vial from
applicant Shubham so far as he is concerned. Besides, he
took me through the evidence of PW-1 Shreya who has not
supported the stand of PW-6 who stated that co-accused
assured her to provide the vial. It is brought to the notice
that CDR has not been produced.
5. The State resisted this application by filing reply
affidavit. The entire prosecution story has been narrated.
The evidence in brief has been stated and ultimately,
application is prayed to be rejected on the ground of
seriousness of the offence.
6. The applicant was also charged under the
provisions of Essential Commodities Act along with Drugs
and Cosmetics Act, however he was acquitted from those
charges. The conviction is under Section 420 of the Indian
Penal Code only. The applicant is in Jail since 18.04.2021
till date. The Trial Court has imposed sentenced to
undergo imprisonment for five years. Normally, when the
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fixed term of sentence is imposed then unless exceptional
circumstances emerges, execution of sentence has to be
suspended. The applicant has pointed that he has
arguable case on merits. Moreover, he has submitted that
applicant has no criminal antecedents. Having regard to
the nature of accusation, there are hardly chances of
repetition of crime. In case of rejection of this application,
there could be no reversal of pre-trial detention, if
applicant succeeds in appeal. Learned counsel for the
applicant has submitted that if fine has not already been
paid then it would be paid. Having regard to these facts,
following order:-
(I) The criminal application stands allowed.
(II) The execution of substantive sentence passed in
Sessions Trial No. 329/2021 by the Additional
Sessions Judge, Nagpur vide order dated
04.09.2021 stands suspended till final disposal of
appeal.
(III) In the meantime, the applicant - Shubham S/o
Satyaniwas Arjunwar be released on bail on his
furnishing P. R. bond of Rs. 50,000/- with one
surety in the like amount.
(IV) The Trial Court shall ensure about the deposit of
fine amount before releasing the applicant on
bail.
JUDGE
Gohane
