Raja vs The State Of Madhya Pradesh
2021 Latest Caselaw 8356 MP

                                  -1-
                                             Cr.A. Nos.3547/2014 & 83/2015


      THE HIGH COURT OF MADHYA PRADESH

             Criminal Appeal No.3547/2014
         (Raja Vs. The State of Madhya Pradesh)
                                  &
              Criminal Appeal No.83/2015
       (Jitendra Vs. The State of Madhya Pradesh)

     Date of Judgment      07/12/2021

     Bench Constituted     Single Bench

     Judgment delivered Hon'ble Shri Justice Sanjay Dwivedi,
     by                 J.

     Whether approved      No
     for reporting

     Name of counsels      For Appellants : Smt.          Durgesh
     for the parties       Gupta, Amicus Curiae.
                           For Respondent/State : Shri S.K.

Shrivastava, Govt Advocate.

     Law laid down         ----

     Significant Para      ----
     Nos.


                        (J U D G M E N T)
                          (07/12/2021)

Since both the criminal appeals are arising out

of one and the same judgment, which is impugned in

these appeals, therefore, both the appeals are being

heard and decided concomitantly by this common

judgment.

2. These appeals are directed against the judgment

dated 17.11.2014 passed by the Special Judge

Cr.A. Nos.3547/2014 & 83/2015

(NDPS), Jabalpur, in Special Case No.54/2012

whereby appellant-Raja has been convicted for the

offence punishable under Sections 8/21(B) of the

Narcotic Drugs and Psychotropic Substances Act,

1985 and sentenced thereunder to suffer rigorous

imprisonment for 4 years with fine of Rs.25,000/-, in

default of payment of fine further rigorous

imprisonment for four months and appellant-Jitendra

has also been convicted under the said sections and

sentenced thereunder to suffer rigorous

imprisonment for 3 years with fine of Rs.20,000/-, in

default of payment of fine further rigorous

imprisonent for three months.

3. From the documents available on record, it does

not reveal as to whether fine amount has been

deposited by the appellants or not.

4. As per the case of prosecution, upon a tip-off,

the police of Police Station Lordganj, District

Jabalpur, on 11.05.2012 made a search of the

appellants near Bus Stand and found total 100 gms.

of smack in their joint possession and as such they

have been arrested in the alleged offence.

Cr.A. Nos.3547/2014 & 83/2015

5. The counsel for the appellants has challenged

the impugned judgment mainly on the ground that

the seizure witnesses namely, Rakesh Sonkar (PW-2)

and the Investigating Officer, Ramnath Sharma (PW-

4) have not supported the case of prosecution and as

such they have been declared hostile.

6. The counsel for the appellants submits that

there is material contradiction in the statement of

Ramnath Sharma (PW-4) and Madan Singh Maravi

(PW-1) in respect of availability of electronic weighing

machine (Taraju). She further submits that from the

statement of prosecution witness especially the

Investigating Officer, Ramnath Sharma (PW-4), it is

clear that no notice of search in writing as required

under Section 50 of the NDPS Act has been given to

the appellants and as such it is in violation of Section

50 of the NDPS Act which is a mandatory

requirement, therefore, the impugned judgment

passed against the appellants convicting them is not

sustainable in the eyes of law.

7. Shri Shrivastava, learned Government Advocate

appearing for the respondent/State on the other hand

Cr.A. Nos.3547/2014 & 83/2015

has opposed the submission made by the counsel for

the appellants and supported the finding given by the

special judge and relied upon the observation made

in paragraph-30 of the judgment saying that the

court below after considering all material aspects

arrived at conclusion that the prosecution has proved

its case against the appellants beyond all reasonable

doubts. He further submits that not only this but the

trial Court at the time of awarding sentence has

sympathetically considered the fact that it was the

first offence of the appellants and not awarded them

the maximum sentence prescribed under the

respective provisions of the NDPS Act.

8. Smt. Gupta appearing as amicus curiae for the

appellants submits that both the appellants have

undergone and suffered sentence of one year and one

month out of total jail sentence awarded to them and

considering the said period of sufferance, the

remaining period of sentence may be dispensed with

and the appellants may be discharged considering the

undergone period by enhancing the fine amount.

9. Considering the existing facts and circumstances

Cr.A. Nos.3547/2014 & 83/2015

of the case and taking note of the fact that the

appellant have been convicted and sentenced for a

period of four years and three years rigorous

imprisonment with fine of Rs,. 25,000/- and

Rs.20,000/- respectively and in default of payment of

fine, they have to undergo further rigorous

imprisonment for four months and they have already

suffered jail sentence of almost one year out of the

total sentence awarded to them, the request made by

the amicus curiae that the sentence awarded to the

appellants be reduced to the period already

undergone by them appears reasonable.

10. Accordingly, these appeal is partly allowed. The

impugned judgment and the findings given therein

are hereby affirmed. However, the sentence awarded

to appellants is reduced to the period of sentence

already undergone by them. As there is no material

available on record indicating as to whether the

amount of fine has been deposited by the appellant or

not, therefore, it is directed that if the amount has

already been deposited by the appellant, nothing

more is required to be done by the respondent-

authority, but, if fine amount has not been deposited

Cr.A. Nos.3547/2014 & 83/2015

by the appellants, they shall undergo rigorous

imprisonment for four months and three months

respectively, as has been ordered by the court below

in default of depositing the amount of fine.

11. Since the appellants are on bail, their bail bonds

and surety bonds stand discharged.

12. Appeals partly allowed and disposed of.

(Sanjay Dwivedi) Judge

Raghvendra