Chattisgarh High Court
Mohamad Ashim vs State Of Chhattisgarh on 16 September, 2022
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
CRA No. 1262 of 2019
1. Mohamad Ashim S/o Abdul Sattar Aged About 23 Years R/o Medical Road Kosmi
Chowk Kotpad, Police Station Kotpad, District Koraput (Odisha)
2. Mohamad Shakim Alias Chhotu S/o Mohamad Shamim, Aged About 18 Years 8 Month,
R/o Medical Road Kosmi Chowk Kotpad, Police Station Kotpad, District Koraput
(Odisha).
---- Appellants
Versus
• State Of Chhattisgarh Through Station House Officer, Police Station Borai, District
Dhamtari Chhattisgarh
-----Respondent
16/09/2022 Shri Vikas Pradhan, counsel for the appellant/s.
Ms. Ruchi Nagar, Dy.G.A. for the State.
Heard on I.A.No.1, application for suspension of sentence and
grant of bail.
By the impugned judgment of conviction and order of sentence
dated 16/07/2019 passed by the Special Judge (NDPS Act), District -
Dhamtari, Chhattisgarh in Special Criminal Case (NDPS)
No.213/2017, the appellants have been convicted under Section 20
(b) II (C) of NDPS Act, 1985 and sentenced to undergo R.I. for 10 yrs
and fine of Rs.1,00,000/- to both the appellants, with default
stipulation.
Case of the prosecution is that while checking the vehicle (Swift
car), police officials recovered 62.5100 kgs of ganja from the
possession of the appellants.
Learned counsel for the appellants submits that conviction of
the appellants and award of sentence is patently erroneous, contrary
to the evidence on record and bad in law. It is submitted that the trial
Court did not appreciate the evidence in its proper perspective and
erroneously came to the conclusion that it is the appellants who have
committed the said offence. It is further submitted that the seizure
witnesses have turned hostile and they have not supported the case
of the prosecution and there is non-compliance of mandatory
provision of Section 42 of the NDPS Act. It is submitted that the
maximum sentence awarded to the appellant is of 10 years and the
appellants have already served / undergone 5 yrs and 1 month of the
total sentence i.e. more than half of the sentence awarded to the
appellants. Learned counsel placed reliance on a recent judgment of
Hon'ble Supreme Court in the case of Satendra Kumar Antil v.
Central Bureau of Investigation & anr. reported in 2022 LiveLaw
(SC) 577. He next submits that hearing of the appeal is likely to take
sometime and therefore, the application for suspension of sentence
and grant of bail may be allowed.
On the other hand, learned State counsel submits that the
finding recorded by the Special Court is based on proper evidence
which have been brought before the Special Court and the finding so
recorded cannot be said to be perverse. She fairly submits that
though the seizure witnesses have been declared hostile, however,
she submits that they have admitted their signatures on the seizure
memo and on the basis of other evidence brought before the Court,
conviction has been sustained. She fairly submits that the appellants
have completed more than half of the sentence awarded to them.
She further goes to submit that the appellants are residents of State
of Odisha and in case, the application is allowed by this Court, their
presence may be secured by way of local surety, for which, counsel
for the appellant has no objection.
Having heard submission of learned counsel for the parties,
looking to the facts and circumstances of the case, evidence collected
by the prosecution, detention period of the appellants, reliance placed
in the case of Satendra Kumar Antil (supra) and also considering
that hearing of the appeal is likely to take some time, this Court is of
the opinion that the application should be allowed.
Accordingly, I.A.No.1 is allowed. The substantive jail sentence
awarded to the appellants is suspended and they are directed to be
released on bail on each of them furnishing a personal bond in the
sum of Rs.1,00,000/- along with one local surety of the same amount
to the satisfaction of the concerned Special Court for their
appearance before the Registry of this Court on 18/11/2022. They
shall thereafter appear before the Special Court on a date to be given
by the Registry of this Court and shall continue to appear there on all
such further dates as are given to them by the said Court, during the
pendency of this appeal.
It is made clear that the fine amount has not been suspended.
List this case for final hearing.
Certified copy as per rules.
Sd/-
(Sachin Singh Rajput )
Judge
Deepti
