Rajesh Alias Bhura vs The State Of Madhya Pradesh
2021 Latest Caselaw 1051 MP

                                    1                             CRA-10354-2019
         The High Court Of Madhya Pradesh
                    CRA-10354-2019
           (RAJESH ALIAS BHURA AND OTHERS Vs THE STATE OF MADHYA PRADESH)

13
Jabalpur, Dated : 24-03-2021
        Shri Sourabh Singh Thakur, learned counsel for the appellant.
        Ms. Seema Jaiswal, learned PL for the respondent/State.

He a r d on I.A. No.1083/2021 which is second application for suspension of sentence filed on behalf of appellant.

First application for suspension of sentence was dismissed as

withdrawn on 28/07/2020.

T he appellant has been convicted by the impugned judgment dated 05.11.2019 passed by the trial Court in S.T. No.06/2015 for offence under Section 20(B) (ii) (C) of N.D.P.S Act and sentenced to undergo R.I. for 10 years with fine of Rs.1,00,000/-, with default stipulation.

The present appellant and co-accused have filed different appeals i.e CRA-10354/2019 and CRA- 34/2020, arose out of the common judgment passed against both the accused.

The allegation against the appellant is that on 10/12/2014 about 38 kg

and 80 gm Ganja have been recovered from the joint possession of the appellant and co-accused.

Learned counsel for the appellant submits that he is in custody since the date of judgment. He submits that Section 42(2) and Section 50 are not complied by the Police. The appellant has falsely implicated in this case. There is a possibility that the sample was tempered in the Malkhana of Police Station. Hence, jail sentence of appellant be suspended and he be released on bail.

Learned counsel for the State has strongly opposed to enlarge the appellant on regular bail.

In this regard, in the record there is a receipt (Ex-P-39) which shows that sample in S.T No.06/2015 was kept in the Malkhana of Police Station, 2 CRA-10354-2019 Chachai. On 10/12/2014, as per FSL report the same sample was received by the FSL on 15/12/2014 in a sealed condition with the appropriate seal. Further that there is a sufficient evidence is available in record against the appellants. There are some lapses on the part of prosecution, which cannot be treated as material lapses to ignore the crime and other evidence available against the appellant. Learned counsel for the appellant in connected matter cited the

case of State of Rajasthan Vs. Parmanand & Another reported in AIR 2014 Supreme Court 1384, where is it held that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. If a common notice is given on which co-accused has signed for himself and for accused and accused did not sign, the right available under Section 50 cannot be said to be properly communicated to accused person.

In the present case, exhibit P-9 was already signed by all the accused persons. Hence, the principal laid down in case of State of Rajasthan (Supra) is not applicable in the present case. Further no citation of Supreme Court or High Court has been cited by the appellant in the present case.

Looking to the nature of offences and seized quantity of Ganja and particularly custody period of the appellant, this Court is not inclined to suspend the jail sentence of the appellant.

Faced with the aforesaid circumstances and knowing the mind of the Court, learned counsel for the appellant prays for withdrawal of this application.

As prayed, I.A No.1083/2021 is dismissed as withdrawn.

(SMT. ANJULI PALO) JUDGE

Prar

PRARTHANA SURYAVANSHI 2021.03.24 17:57:04 +05'30'