Madhya Pradesh High Court
Santosh Bai vs The State Of Madhya Pradesh on 7 December, 2022
Author: Satyendra Kumar Singh
1 Cr.A.No.5873/2018
(Santosh Bai Vs. State of M.P.)
Indore : Dated 7.12.2022
Shri R.R.Trivedi, learned counsel for the appellant.
Ms. Nisha Jaiswal, learned Panel Lawyer for the
respondent/State.
Heard on I.A.No.10921/2022, which is an application filed
under Section 389(1) of Cr.P.C, for suspension of jail sentence moved
on behalf of the appellant.
Appellant has been convicted for the offence punishable under
Section 8/18(B) of the NDPS Act and sentenced her to undergo 10
years RI with fine of Rs.1,00,000/- default stipulation vide judgement
dated 17.07.2018 passed by the Additional Special Judge, NDPS Act,
Garoth, District Mandsaur in S.S.T.No.06/2012.
Learned counsel for the appellant referring to notice dated
07.05.2012 (Exhibit-P/2) given by the Investigating Officer under
Section 50 of the NDPS Act submits that provisions of Section 50 of
the NDPS Act has not been complied with as the aforesaid notice was
given jointly to the appellant as well as to other co-accused persons
which is in violation to the provisions of Section 50 of the NDPS Act.
He further submits that the aforesaid notice is also defective as third
option given by the Investigating Officer that appellant can give
search of the person in front of him also in this regard. He has placed
reliance upon the judgment of the Apex Court in the case of State of
Rajasthan vs. Parmanand & another, 2014 (5) SCC 345 in support
of his contention. He also submits that appellant is in custody since
(Santosh Bai Vs. State of M.P.)
17.07.2018 and as per report dated 21.06.2022, appellant has suffered
incarceration of 5 years 1 month, which is more than 50%of the total
jail sentence awarded to her. Appellant is having a son, aged about 3
years with her and there is no one in the family to take care of him.
There is no likelihood of hearing of the appeal in near future. With the
aforesaid, prayer is made for suspension of the remaining custodial
period and grant of bail to the appellant.
Learned Public Prosecutor for the respondent-State opposes the
prayer for suspension of remaining jail sentence and submits that
provisions of Section 50 of the NDPS Act were complied with.
Appellant was found having commercial quantity of contraband
therefore, no relief as claimed for is made out.
Heard learned counsel for the parties and perused the record.
The Apex Court in the case of State of Rajasthan (supra) has
observed as under :-
"14. In our opinion, a joint communication of the
right available under Section 50(1) of the NDPS Act
to the accused would frustrate the very purport of
Section 50. Communication of the said right to the
person who is about to be searched is not an empty
formality. It has a purpose. Most of the offences
under the NDPS Act carry stringent punishment
and, therefore, the prescribed procedure has to be
meticulously followed. These are minimum
safeguards available to an accused against the
possibility of false involvement. The
communication of this right has to be clear,
unambiguous and individual. The accused must be
(Santosh Bai Vs. State of M.P.)
made aware of the existence of such a right. This
right would be of little significance if the
beneficiary thereof is not able to exercise it for want
of knowledge about its existence. A joint
communication of the right may not be clear or
unequivocal. It may create confusion. It may result
in diluting the right. We are, therefore, of the view
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. Similar view taken by
the Punjab & Haryana High Court in Paramjit Singh
and the Bombay High Court in Dharamveer
Lekhram Sharma meets with our approval. It bears
repetition to state that on the written communication
of the right available under Section 50(1) of the
NDPS Act, respondent No.2 Surajmal has signed
for himself and for respondent No.1 Parmanand.
Respondent No.1 Parmanand has not signed on it at
all. He did not give his independent consent. It is
only to be presumed that he had authorized
respondent No.2 Surajmal to sign on his behalf and
convey his consent. Therefore, in our opinion, the
right has not been properly communicated to the
respondents. The search of the bag of respondent
No.1 Parnanand and search of person of the
respondents is, therefore, vitiated and resultantly
their conviction is also vitiated.
In the present case, admittedly, notice under Section 50 of the
NDPS Act was jointly served upon the appellant as well as other co-
accused persons namely, Ayodhyabai, Suganbai and Santoshbai W/o
Baluram, wherein third option with regard to giving search to the
Investigating Officer was also mentioned. Appellant has suffered
(Santosh Bai Vs. State of M.P.)
about 5 years 1 month incarceration, which is more than 50% of actual
jail sentence awarded to her.
In view of the aforesaid discussion, this Court is of the
considered view that it is a fit case for suspension of the sentence and
grant of bail to the appellant. Hence, without expressing any opinion
on merits of the matter I.A.No.10921/2022 is allowed and jail sentence
of the appellant shall remain suspended with stringent condition.
It is directed that subject to depositing the fine amount, if
already not deposited she shall be released on bail, on furnishing a
personal bond in the sum of Rs.1,00,000/-(Rupees One lac only)
alongwith a solvent surety in the like amount to the satisfaction of the
Trial Court, for her appearance before the Registry of this Court firstly
on 23.1.2023 and on such other dates, as may be fixed by the Registry
in this regard, till final disposal of this appeal.
List for final hearing in due course.
Certified copy as per rules.
(Satyendra Kumar Singh)
Judge
Patil
Digitally signed by
SHAILESH PATIL
Date: 2022.12.08
10:33:14 +05'30'
