Khushalsingh @ Kushalsingh vs The State Of Madhya Pradesh
2021 Latest Caselaw 2519 MP

                                            1                                                          Cr.A. No.1149/2021

                                                           HIGH COURT OF MADHYA PRADESH
                                                                     Cr.A. No.1149/2021
                                                       Khushalsingh @ Kushalsingh Vs. State of M.P.
                                            Indore, Dated:18.06.2021

                                                  Shri. Sanjay Sharma, learned counsel for appellant.

                                                  Ms.Harshlata Soni, learned PL for respondent/State.

Heard on admission.

The appeal contains arguable point and is accordingly admitted for hearing.

Shri Sharma pressed IA No.5101/2021 filed u/S.389 of Cr.P.C. This is the first application seeking suspension of sentence.

The conviction and sentence of appellant is as under:-

Section Imprisonment Fine Imprisonment in lieu of fine 8/21(b) of NDPS Act 04 years RI 20,000 03 months RI Learned counsel for appellant submits that as per prosecution story, 250 gm heroin was allegedly recovered from the appellant. The commercial quantity is above 250 gm. At the time of alleged recovery, the statutory and constitutional mandate ingrained in Sec.50 of the NDPS Act were grossly violated. By relying on the statement of Samrat (PW.10) learned counsel for appellant submits that he has given three options for the purpose of search to appellant namely; Executive Magistrate, Gazetted Officer and himself which runs contrary to the judgment of Supreme Court in the matter of State of Rajasthan Vs. Parmanand and another (2014) 5 SCC 345. The passage relied upon reads thus:-

"19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case Signature Not VerifiedDigitally signed by that the respondents informed the officers that they would SAN VARGHESE MATHEW Date: 2021.06.18 17:07:44 IST

like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated."

It is further urged that appellant's mother and father both have already died leaving behind appellant's grandmother aged about 90 years. Appellant has already remained in jail for about 10 months (five months during trial and rest of the period after the date of judgment). It is submitted that hearing of this appeal in this pandemic era is not possible. Hence, remaining jail sentence of appellant may be suspended.

The prayer is opposed by learned P.L.

I prima facie find substance in the argument of learned counsel for appellant. Considering the aforesaid, I deem it proper to suspend the remaining jail sentence.

Accordingly, IA No.5101/2021 is allowed. Execution of jail sentence of the appellant Khushalsingh @ Kushalsingh is hereby suspended and it is ordered that the appellant be released on bail on his furnishing a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with one separate solvent surety of the like amount to Signature Not VerifiedDigitally signed by SAN VARGHESE MATHEW Date: 2021.06.18 17:07:44 IST

the satisfaction of the trial Court with a further direction to appear before the trial Court Garoth, Distt. Mandsaur on 22/12/2021 and also on such other dates, as may be fixed by the trial Court in this regard during the pendency of this appeal.

c.c as per rules.

(SUJOY PAUL) Judge

vm

Signature Not Verified VerifiedDigitally Digitally signed by SAN VARGHESE MATHEW Date: 2021.06.18 17:07:44 IST