Madhya Pradesh High Court
Nathulal vs Central Narcotics Bureau Through ... on 31 July, 2021
Author: Vivek Rusia
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)
CRA No. 2931/2019
(Nathulal V/s. State of M.P.)
Date: 31.07.2021 :
Shri Amit Singh Sisodia, learned counsel for the appellant.
Shri Manoj Kumar Soni, learned counsel for the Respondent.
Heard the learned counsel for the parties through video
conferencing.
Heard on I.A. No.6330/2020, second application under section
389 of Cr.P.C. seeking suspension of custodial sentence of the
appellant No.1 Nathulal, who has been convicted for the offence
punishable under section 8/18 (b) of N.D.P.S. Act vide judgment dated
05.03.2019 passed by Special Judge (NDPS Act) Javad, District
Neemuch in Special Case (NDPS) 70/2017 and sentenced to undergo
10 years R.I. and to pay fine of Rs.1,00,000/- with default stipulation.
First application of the appellant was dismissed as withdrawn
vide order dated 22.01.2020.
As per prosecution story, Sub Inspector M.S. Pathak posted in
the office of District Opium Officer, Mandsaur received a discrete
information about transportation of opium by Hemraj and Nathulal
through Maruti Car bearing registration No. RJ-06-CA-6936.
Panchanama was prepared and A.K. Tulsidas directed to Sub Inspector
Rakesh Verma to initiate the process for search. A team was
constituted and near about 07:30 AM, a white colour Maruti Car
bearing registration No. RJ-06-CA-6936 was found coming from
Neemuch side. The car was stopped in which Hemraj and Nathulal
was found. After compliance of provision of section 50 of N.D.P.S.,
they were searched personally but nothing was found in their
possession. Thereafter, their vehicle was searched in which from the
below of driver seat two transparent packets were found. Weight of
both the packets were taken and same were found 2.560- 2.550 kg in
total 5.110 kg. The sample 24-24 gram were taken both the packets.
After completing the necessary process, the Hemraj and Nathural were
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made accused in this case. After completing the investigation, challan
was filed and they were tried for the above offence. Since they pleaded
not guilty, therefore prosecution examined eight witnesses and
defence, the appellant did not examined any witnesses and simply
pleaded that Narcotic Department falsely implicated him by obtaining
his signature in blank paper.
Learned counsel for the appellant submits that the appellant has
undergone more than half of the sentence and there is no likelihood
final hearing of this appeal in near future. He is first offender and he
has been falsely implicated in the case. He was found sitting front seat
but the contraband was found below the driver seat. He was not aware
that Hemraj was carrying contraband in the car. It is further submitted
that there is no compliance of Section 42 and 50 of N.D.P.S. Act, while
conducting the search. He further submits that received information
was recorded in Panchnama (Ex.P/12) in which no place was
disclosed. The Investigation Officer and other witnesses have failed to
explain that without there being any specific disclosure of place, how
they have reached to the spot and found the vehicle coming from the
Neemuch side. There are as many as 3-4 road connecting the Neemuch
from Rajasthan, therefore, false implication of the appellant cannot be
ruled out. Although these grounds are liable to be considered at the
time of final hearing of appeal but by that time the appellant would
serve the remaining sentence. In such premises, counsel for the
appellant prays for suspension of jail sentence of appellant.
Shri Manoj Soni, learned counsel appearing on behalf of
respondent submits that in a discrete information, the vehicle number
and name of present appellant were disclosed and according to which
the team of Narcotic Department have found the vehicle and
contraband therein. He further submits that the Apex Court in Criminal
Appeal No.257/2021 State (NCT of Delhi )Vs. Lokesh Chadha has
held that the jail sentence in NDPS matter is not liable to be suspended
merely the appellant has undergone half jail sentence, there has to be
ground for suspension of jail sentence.
So far as compliance of section 50 of NDPS is concerned,
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nothing was found in personal search of appellant and in case of search
of vehicle the provision of section 50 of NDPS Act does not apply. So
far as compliance of 43 of N.D.P.S. is concerned, the contraband was
recovered from the private vehicle not from the public vehicle,
therefore, there is no violation of Section 43 of N.D.P.S. Act.
Only ground on which much stress was given by the learned
counsel that in Mukhbir Suchna Panchnama no place was mentioned
from where vehicle could by apprehended. Ashok Kumar (PW-5), A.K.
Tulsidasan (PW-6), Rakesh Verma (PW-7) and Yogesh Nandval (PW-
8) were member of search team and no such suggestion was given to
them as to how they could found the appellant in Alto car at the place
of arrest without there being any specific location mentioned in
Mukhbir Suchna Panchanama, therefore, merely the appellant has
undergone half of his jail sentence, the sentence is not liable to be
suspended due to rigor of section 37 because quantity of contraband is
more than commercial quantity.
In view of the above, I.A. No.6330/2020 is rejected.
C.C. as per rules.
( VIVEK RUSIA )
JUDGE
praveen/-
Digitally signed by
PRAVEEN NAYAK
Date: 2021.08.04 14:40:06
+05'30'
