Bhagwatilal vs The State Of Madhya Pradesh
2021 Latest Caselaw 8703 MP

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                                                                CRA No.1292/2016



HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
   (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

                       CRA No. 1292 of 2016
     (Bhagwatilal S/o. Ramchandra Kumawat. V/s. State of M.P.)

Date: 13.12.2021 :
      Ms. Anamika Singh, learned counsel for the appellant.
      Shri    Chetan     Jain,    learned     Panel     Advocate      for   the
respondent/State.

Heard the learned counsel for the parties on I.A. No.18452/2021, a repeat (5th) application for suspension of custodial sentence awarded to the appellant. The appellant stands convicted as under :

Section & Act. Imprisonment Fine Amount Imprisonment in lieu of default of payment of fine.

 8/18(b) of NDPS 10 year RI              1,50,000/-         1 year additional
 Act.                                                       RI.

The present repeat has been filed only on the ground of completion of 6 years, 9 months 7 days (as on 8.10.2021) custodial sentence.

Learned counsel for the appellant submits that the present appellant has already undergone more than 50% of the jail sentence and there is no likelihood of final hearing of this appeal in near future and by that time, the appellant would complete the entire jail sentence. She further submits that the appellant is a first offender. He gave a lift to the co-accused on his motorcycle and he was not aware that he was carrying the contraband in a bag. He is permanent resident of Mandsaur and there is no question of his fleeing away from the city of Mandsaur. No one is there in the family to earn the livelihood, hence the jail sentence be suspended.

On the other hand, the learned Panel Advocate appearing for the respondent/State opposes the prayer by submitting that the offence is a serious offence in which there is a minimum sentence of 10 years. No ground is available to the appellant for suspension of the jail sentence.

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Recently, the apex Court in the case of Mossa Koya KP V/s. State (NCT of Delhi) [Cr. Appeal No.1562/2021 decided on 6.12.2021] has suspended the jail sentence after undergoing the 8 years out of the total 10 years jail sentence. Relevant paragraphs of the said judgment are reproduced below :

"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 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 pedestal 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, we are of the view that a fit and proper case has been made out for the suspension of the sentence under Section 389 CrPC.

14. We accordingly allow the appeal and set aside the impugned order of the High Court. The sentence of the appellant shall stand suspended under Section 389 CrPC, subject to such terms and conditions as may be imposed by the Special Judge, NDPS, Patiala House Courts, New Delhi. The appellant would cooperate in the expeditious disposal of the appeal and shall not apply for adjournment when the matter is taken up."

In view of the aforesaid facts and circumstances of the case, I find it is to be a fit case to suspend the custodial sentence of the appellant.

Accordingly, I.A. No.18452/2021 is allowed and it is directed that subject to deposit of the fine amount, if already not deposited, with the trial Court and on furnishing personal bond by the appellant No.4 - Subh in the sum of Rs.1,00,000/- (One Lakh only) with one solvent surety in the like amount to the satisfaction of learned trial Court for his appearance before the Registry of this Court, the execution of custodial part of the sentence of the appellant shall remain suspended till final disposal of this appeal. The proceedings against the surety are hereby dropped.

The appellant after being enlarged on bail shall mark his

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CRA No.1292/2016

presence before the Registry of this Court on 20.09.2022 and on all such subsequent dates, which are fixed in this behalf.

In view of the above, I.A. No.18451/2021 also stands disposed of.

List for final hearing in due course.

C.C. as per rules.

( VIVEK RUSIA ) JUDGE Alok/-

Digitally signed by ALOK GARGAV Date: 2021.12.14 17:03:08 +05'30'