Ghanshyam vs Union Of India Thru. Central ...
2021 Latest Caselaw 8546 MP

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         THE HIGH COURT OF MADHYA PRADESH
                    BENCH AT INDORE
        (S.B.: HON'BLE Mr. JUSTICE VIVEK RUSIA)

Criminal Appeal No.48/2016 (Ghanshyam V/s Union of India through C.B.N.) Date: 09.12.2021:

Ms. Shraddha Dixit, learned counsel for the appellant. Shri Manoj Soni, learned counsel for the Union of India/CBN.

Heard on I.A. No.5343/2021, which is repeat fourth application filed under Section 389 (1) of the Cr.P.C. for suspension of jail sentence filed on behalf of the appellant-Ghanshyam.

The appellant has been convicted vide judgment dated 10.12.2015 passed in Session Trial No.08/2014 passed by the Special Judge, N.D.P.S. Act, Neemuch District-Neemuch whereby the appellant is held guilty for the offence punishable under section 8/18 of the N.D.P.S. Act and sentenced to undergo 10 years R.I. along with fine of Rs.1,00,000/- and in default stipulation to further undergo one year of R.I.

Learned counsel for the appellant submits that although earlier applications has been dismissed seeking suspension of sentence but during pendency of the appeal appellant has undergone 8 years and 2 months in the custody and there is no likelihood of final hearing of the appeal in near future. Hence application for suspension of sentence has been filed. It is further submitted that if the appeal is not heard finally then it would rendered infructuous because appellant will complete 10 years in custody.

Learned counsel for the Union of India/CBN oppose the aforesaid prayer by submitting that 9 kg. 40 grams of opium was recovered from the possession of the appellant therefore, hence there is no ground for the acquittal of the appellant.

Recently the Apex Court in case of Mossa Koya KP V/s State (NCT of Delhi) in Criminal Appeal No.1562 of 2021 (Arising out of SL (Cril.)No.8647 of 2021 has observed as under:-

12. We appreciate the submission of the Additional Solicitor General that offences under the NDPS Act are of a serious nature and the case is

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at the post conviction stage. Yet the Court cannot be unmindful of the fact that the appellant has undergone 8 years out of the total sentence of 10 years. The appeal is unlikely to be heard early. In all probability, the entire sentence would have been undergone by the time the appeal is heard. The decisions on the basis of which the High Court of Delhi has declined to grant suspension of sentence, are, at the highest, a broad guideline and cannot be placed on the same pedesetal as a statutory interdict. With the pendency of the work in the High Court, it may not be feasible to expedite the disposal of the appeal within a short period.

13. In the circumstances, particularly, since the appellant has undergone 8 years out of ten years of the total sentence which has been imposed on him, were are of the view that a fit and proper case has been made out for suspension of the sentence under Section 389 of the Cr.P.C.

Considering the facts and circumstances of the case and the arguments advanced by learned counsel for the parties, this Court is of the considered opinion that the application for suspension of custodial sentence moved on behalf of the appellant deserved to be allowed.

Accordingly, I.A. No.5343/2021, is allowed and it is directed that subject to depositing fine amount and on furnishing personal bond by the appellant-Ghanshyam, in the sum of Rs.30,000/-(Rupees Thirty Thousand only) with one solvent surety in the like amount to the satisfaction of the learned trial Court for his appearance before the Court, the execution of custodial part of the sentence shall remain suspended, till the final disposal of this appeal.

The appellant shall mark their presence before the registry of this Court on 20/09/2022 and on all such subsequent dates, which are fixed in this regard by the Registry.

I.A. No.5343/2021 stands disposed of.

List the appeal for final hearing in due course. Certified copy, as per rules.

( VIVEK RUSIA ) JUDGE Ajit

AJIT Digitally signed by AJIT KAMALASANAN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001,

KAMALASA st=Madhya Pradesh, 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba24 1effad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61A1EE9 01C09EF29,

NAN serialNumber=7F0BEE2D78BD57DA058F3247441C87 E7E0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN Date: 2021.12.09 18:04:15 +05'30'