Bombay High Court
Ashok Sudhiram Jaiswar vs The State Of Maharashtra on 11 April, 2022
Bench: Prakash Deu Naik
1-IA-1196-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 1196 OF 2021
IN
CRIMINAL APPEAL NO. 330 OF 2022
Ashok Sudhiram Jaiswar ...Applicant/Appellant
Versus
The State Of Maharashtra ...Respondent
....
Mr. Rajendra S. Bidkar, Advocate for the Applicant/Appellant.
Ms. P. N. Dabholkar, APP for the Respondent-State.
CORAM : PRAKASH D. NAIK, J.
DATE : 11th APRIL, 2022.
PER COURT:
1. This is an application for suspension of sentence and
grant of bail during pendency of Criminal Appeal No.330 of 2021.
2. The applicant has been convicted by judgment and
order dated 12th January, 2021, for offence punishable under
Sections 20 & 22 of the Narcotic Drugs & Psychotropic Substances
Act, 1985 (for short 'NDPS Act') and sentenced sentenced to suffer
10 years rigorous imprisonment and fine of Rs.1,00,000/-.
3. The prosecution case is that on 10th April, 2015,
information was received that the accused stored charas at his Pan
stall situated at Naupada, Thana and he is likely to sell it. The
raiding party visited the spot. The accused was present at the spot.
He was asked to open box at the stall. On opening the box, two
Digitally signed
by SAJAKALI
SAJAKALI LIYAKAT
LIYAKAT
JAMADAR
JAMADAR
Date:
2022.04.13
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1-IA-1196-2021.doc
plastic bags containing the contraband were found. It was
identified as charas. The weight was 2 Kg. 800 grams. Accused
was arrested. On completing investigation, charge-sheet was filed
against him.
4. Learned Advocate for the applicant submitted that the
applicant is in custody from 19 th April, 2015. He has undergone
sentence of about 7 years. The appeal challenging the judgment of
conviction may not be listed for hearing immediately. There are
serious discrepancies in the evidence. On the labels of Muddemal
seized C.R. number could not have been reflected since C.R.
number is available only after the registration of First Information
Report (for short 'FIR'). The panchanama was not recorded at the
spot. According to prosecution, the accused had opened the bags
kept in box by using key. However, the lock and key were not
seized during investigation. After the seizure of articles the
contraband was kept in a warehouse. However, the warehouse
were not produced during trial. There was no endorsement on the
warehouse about the time when the muddemal was received. The
evidence of witnesses is contradictory. The applicant is in jail since
7 years. He is not in a position to deposit fine amount. The
financial condition of the applicant is poor. Hence, payment of fine
may be dispensed with pending the appeal.
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5. Learned APP submitted that the applicant has been
convicted for offences under the NDPS Act. There is sufficient
evidence against the applicant. The trial Court has convicted him
on the basis of evidence. Minor discrepancies does not affect the
prosecution case. Charas was recovered at the instance of the
applicant. It was commercial quantity. Hence, sentence may not be
suspended.
6. Undisputedly, the applicant is in custody almost for
period of 7 years. The appeal is admitted recently. The appeal may
not come up for hearing immediately. PW-1 has stated that he was
member of raiding party. Information was received by Police Naik,
Sonawane. It was reduced into writing. The raiding party visited
the Pan Stall. There was cabinet with door and lock at Pan Stall.
The accused opened the cabinet door with the keys which he was
possessing. There was recovery of charas. Panchanama was
prepared. Accused was arrested. The seal was brought from the
crime branch, office. According to PW-1 they don't have their own
seal. He admitted that the keys by which the accused had opened
the cupboard was not seized at his presence. He do not recollect as
to what happened to the key. There is no reference in the
complaint that test was conducted by taking out pinch of substance
from each packet. The fact that by taking out pinch of substance
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from each packet, two samples were drawn was remained to be
referred to in the complaint inadvertently. He cannot say whether
the said fact is referred in panchanama. PW-2 was a Senior P.I. He
received information on 19th April, 2015 that the accused had
stored charas and he is likely to sell it. On opening the bags at stall
charas was recovered. He admitted that C.R. number is given only
after registration of FIR. C.R. number was registered after the
complaint of PW-1. He did not refer to exact position of the seal on
the envelope in the panchanama. Exhibit - 29 does not bear seal
and signature of receiving officer and muddemal numbers. There
was no muddemal numbers on muddemal envelope. PW-3 is the
panch witness. He was called on 19th April, 2015 by Police
Hawaldar, Bhosale. The other panch was not known to him. He
was asked to take personal search of Police personnel. He referred
to the raid conducted by the Police and recovery of contraband. He
stated that he was working as a driver at Bhiwandi. He has given
his occupation as service. Police Head Constable Bhosale has
having his employee number and he called him at Narcotic Cell by
making call. He was working as driver by friend of Head
Constable, Bhosale. PW-4 Dilip Sonawane was attached to Anti-
Narcotic Cell. According to him he received information about the
charges being kept by accused. He provided the information to
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Police Hawaldar Bhosale. He do not have any document to show
that he was present on duty on 19 th April, 2015. He did not make
reference at the time when information was noted down in Khabari
Book. The applicant is in jail for last Seven Years. According to
him he is not in a position to deposit fine.
7. Considering the aforesaid aspects following order is
passed :
ORDER
i. Interim Application No. 1196 of 2021 is allowed;
ii. During the pendency of Criminal Appeal No.330 of
201, the sentence of imprisonment imposed vide Judgment
and order dated 12th January, 2021 passed by learned District
Judge-2 & Additional Sessions Judge, Thane in NDPS Case
No.41 of 2015 is suspended and the applicant is directed to be
released on bail on executing P.R. Bond in the sum of
Rs.25,000/- with one or more sureties in the like amount;
iii. The applicant is permitted to furnish cash bail in the
sum of Rs.25,000/- for a period of eight weeks in lieu of
surety.
iv. The applicant is permitted to deposit amount of
Rs.50,000/- towards the fine within a period of eight weeks
from the date of release.
v. The applicant shall attend the trial Court once in six
months on first Saturday of the month till the final disposal of
the appeal;
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vi. In the event, there are two consecutive defaults in
attending the trial Court, the said fact may be brought to the
notice of this Court and in such eventuality, the prosecution
will be at liberty to prefer an application for cancellation of
bail.
vii. Interim Application stands disposed of accordingly.
(PRAKASH D. NAIK, J.)
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