Bombay High Court
Sheikh Arif S/O Sheikh Rafique ... vs State Ofm Ha.Thr. Pso Ps Pachpaoli ... on 25 November, 2021
Bench: V. G. Joshi
1 12 appa 588.2021.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPA) NO. 588 OF 2021 IN
CRIMINAL APPEAL NO. 421 OF 2021
Sheikh Arif s/o Sheikh Rafique (Sheikh Arif s/o Sheikh Rashid)
..vs..
State of Maharashtra, thr. P.S.O.
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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 A.S. Manohar, Advocate for applicant.
Shri S.D. Sirpurkar, A.P.P. for non-applicant/State.
CORAM : VINAY JOSHI, J.
DATED : 25/11/2021
Heard.
2. This is an application seeking suspension of
execution of sentence passed by the Additional
Sessions Judge-7, Nagpur in Sessions Trial No.324 of
2021 dated 02.08.2021. The Trial Court held
applicant/appellant guilty for the offence punishable
under Sections 381, 420 of the Indian Penal Code,
Section 3 read with Section 7 of the Essential
Commodities Act and Section 18(c) read with Section
27(d) of the Drugs and Cosmetics Act. Though the
Trial Court has imposed different sentence for each
offence, the maximum sentence is to undergo rigorous
imprisonment for the period of 5 years along with
total fine of Rs.35,000/-. All sentences were directed
to run concurrently.
3. Learned Counsel for the applicant took me
through the impugned judgment and order along with
the evidence recorded in the trial. It is submitted that
2 12 appa 588.2021.2021
seizure of Remdesivir vial (injection) from the
possession of the applicant, who was a ward boy, is
doubtful. To substantiate said contention, he took me
through the evidence of P.W.11 Dr.Murli Ammal and
also the evidence of P.W.7 Panch Witnesses. It is
pointed out that while applicant was leaving from the
Hospital, he was accosted on suspicion of theft.
Though the applicant was made to sit in a separate
room, however, his bag containing stolen material,
was kept with the receptionist. To support the said
contention, cross-examination of P.W. 11 is pointed
out. Moreover, it is submitted that seized material
was not sealed. On the other hand, it is shown from
the evidence that the seized material was used for the
patients.
4. As regards to charge of theft of Remdesivir
injection is concerned, it is argued that the evidence
of concerned witnesses i.e. P.W.2 and P.W.3 are not
believable sans details. It is the submission that there
was no record regarding missing of Remdesivir vials
from the Hospital, which was kept as per the
directions issued by the Collector. Learned Counsel
for the applicant pointed from the evidence that there
was CCTV camera installed throughout the Hospital.
Since there is no CCTV evidence, by placing reliance
on the decision of the Hon'ble Supreme Court in the
case of Tomaso Bruno and anr. vs. State of U.P.
(2015) 7 SCC 178, it is submitted that adverse
inference can be drawn. Having regard to these
3 12 appa 588.2021.2021
submissions based on record, the applicant has made
out an arguable case on merits.
5. The applicant has deposited entire fine
amount on 04.08.2021 in the Trial Court. He is in jail
from 24.04.2021 i.e. from last seven months. In case
of success in appeal, the position would become
irreversible about his under trial detention. Generally,
unless there are exceptional circumstances, execution
of sentence can be suspended when the accused is
imposed with fixed terms of sentence. The Appeal will
take considerable time for its disposal in accordance
with law. Having regard to all above circumstances,
the case for suspension of substantive sentence is
made out. In view of that execution of substantive
sentence passed in Sessions Trial No.324 of 2021 by
the Additional Sessions Judge-7, Nagpur dated
02.08.2021 is hereby suspended till the final disposal
of appeal.
6. In the meantime, the applicant shall be
released on bail on his furnishing P.R. bond of
Rs.50,000/- with one or two sureties in the like
amount.
7. The applicant shall attend dates of hearing in
the appeal.
JUDGE
Trupti
