Ashish Gupta vs The State Of Madhya Pradesh
2022 Latest Caselaw 16782 MP

                                                              1
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT JABALPUR
                                                      CRA No. 5806 of 2021
                                        (ASHISH GUPTA AND OTHERS Vs THE STATE OF MADHYA PRADESH)

                         Dated : 19-12-2022
                                  Shri Sandeep Kumar Jain - Advocate for appellant No.2 Ram Prakash

                         Patel.
                                  Shri Manas Mani Verma - Government Advocate for the State.

                                  Learned counsel for the parties are heard on I.A.No.21128/2022, which is
                         third application filed under Section 389(1) of the Code of Criminal Procedure,

                         1973 by appellant No.2 Ram Prakash Patel S/o.Shri Shyam Lal Patel seeking
                         suspension of sentence and grant of bail after rejection of the first bail
                         application     (I.A.No.19366/2021)      and    the    second     bail    application
                         (I.A.No.1221/2022) as withdrawn vide orders dated 22.12.2021 & 24.3.2022
                         respectively
                                  Vide impugned judgment dated 17.9.2021 passed by learned Special
                         Judge (N.D.P.S Act) Anuppur in Special Case (NDPS) No.16/2015, appellant
                         No.2 Ram Prakash Patel has been convicted for the offence under Section
                         8/20(b)(ii)(c) of the Narcotic Drugs And Psychotropic Substances Act, 1985

                         and sentenced to undergo rigorous imprisonment for ten years with fine and
                         default stipulation.
                                  Brief facts of the case are that admittedly on 13.7.2015 at about 17.40
                         hours, a Silver Colour Swift Dzire Car bearing registration No.MP18-T-2835
                         was intercepted by the Police Authorities at Pasla where about 34 Kilogram of
                         Cannabis was recovered from the possession of Ashish Gupta, Pappu Gupta,
                         Bhopal Singh Gond & Rakesh Gupta. The allegation against the appellant No.2
                         Ram Prakash Patel is that he had escaped from the Car.
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
12/21/2022

11:11:58 AM

It is submitted by learned counsel for the appellant No.2 that appellant No.2 Ram Prakash Patel has not been identified by any of the witnesses. There is no identification of Ram Prakash Patel, who allegedly ran away from the Car when it was intercepted by the Police Authorities.

Placing reliance on the judgment of a Coordinate Bench of this Hon'ble High Court in Criminal Appeal No.5673/2019 [Rajbhan versus State of Madhya Pradesh] decided on 19.3.2021, it is contended by learned counsel for the appellant No.2 that similarly placed person, who had slipped away into the Jungle and escaped and whose name was given by the co-accused persons, has been granted benefit of suspension of sentence. He also places reliance on

another decision of a Coordinate Bench of this Hon'ble High Court in Kesha versus State of Madhya Pradesh 1989 (2) M.P.W.N 148 wherein it is held that if there is no satisfactory identification and the arrest is made after four months then the accused cannot be convicted. Reliance is further placed on the judgment of Hon'ble the Supreme Court in Khekh Ram versus State of Himachal Pradesh AIR 2017 SC 5255 to contend that a case where the Test Identification Parade was not carried out then it is a fit case for acquittal. Reliance is then placed on another decision of a Coordinate Bench of this Hon'ble High Court Court in Criminal Revision No.1341/2021 (Anup Jaiswal @ Jassa versus State of Madhya Pradesh decided on 13.9.2021 on the same aspect.

In view of the aforesaid, it is submitted by learned counsel for appellant No.2 that it is fit case to extend the benefit of suspension of sentence to the appellant No.2. As per certificate under Section 428 of the Code of Criminal Procedure, 1973, appellant No.2 Ram Prakash Patel was on police remand from

Signature Not Verified 5.12.2017 to 6.12.2017 and then in judicial custody since 7.12.2021 to Signed by: AMIT JAIN Signing time:

12/21/2022 11:11:58 AM

31.12.2018 and thereafter he was on bail. Appellant No.2 is now in custody from the date of the judgment of the Trial Court. i.e. for about fifteen months and the total period of his custody is over nineteen months.

Learned Government Advocate for the State opposes the prayer made by learned counsel for the appellant No.2 and submits that all these technicalities will not come in the way to release the appellant No.2 when the learned Trial Court has referred to Rojnamcha Sanha Entry showing presence of present appellant No.2 Ram Prakash Patel. The other accused persons, who were intercepted from the scene of crime, have given the name of appellant No.2 without any delay, therefore, in the light of the judgment of a Coordinate Bench of this Hon'ble High Court in Harsingh Jamnalal Meena & Others versus State of Madhya Pradesh 2002 (3) M.P.L.J 168 wherein it is held that fleeing of the appellant from the spot exhibited his guilty animus and the burden was on the appellant to prove that he had no knowledge of Opium being present in the Car and that burden was required to be discharged by proving that fact beyond reasonable doubt. He, therefore, prays for dismissal of the application seeking suspension of sentence and grant of bail to appellant No.2 Ram Prakash Patel.

After hearing learned counsel for the parties and going through the record, it is apparent that the Entry in Exhibit P/3C at Serial No.05/15 does not

make a mention of number of persons travelling in the Car though Exhibit P/3C is copy of Amad Mukhbir Suchna Register. Witness of Exhibit P/4 Ram Singh (PW.3) has not supported the case of prosecution. Pawan Kumar Gupta (PW.6) and Ram Bhajan Rathore (PW.7) have turned hostile. Arvind Dubey (PW.8), Assistant Sub Inspector of Police Station Beohari, District Anuppur Signature Not Verified Signed by: AMIT JAIN Signing time:

12/21/2022 11:11:58 AM

admits in his cross-examination that while departing from Shahdol, he or his team have not made any entry in Rojnamcha Sanha. In Paragraph No.13, Arvind Dubey (PW.8) admits that he was not knowing any of the accused persons before and the investigating Officer had given him details and dimension of only one person but had not given the details of the clothes worn by the said person. Constable Shailendra Dubey (PW.9) admits that no intimation was given by Sub Inspector RS.Tiwari about Mukhbir Suchna. He had not received any intimation in regard to Exhibit P/25. Constable Shailendra Dubey (PW.9) admits that his phone was at Anuppur, therefore, his mobile location was of Anuppur and not of Pasla. Constable Shailendra Dubey (PW.9) admits that both the independent witnesses are not from Anuppur. Investigating Officer R.S.Tiwari (PW.11) in Paragraph No.12 admits that he had reached the place of the incident at 17.25 hours whereas in the Panchnama (Exhibit P/5), the time is mentioned as 16.25 hours. R.S.Tiwari (PW.11) admits that he had not corrected the time mentioned in the Panchnama and it was prepared at Anuppur Police Station. R.S.Tiwari (PW.11) admits that he had not taken both the independent witnesses to the place of the incident but in Exhibit P/5, the time of arrival of the witnesses is mentioned at 16.25 hours. Nowhere it is mentioned that any of the witnesses had identified the present appellant No.2 Ram Prakash Patel.

In view of the aforesaid, when the law laid down by Hon'ble the Apex Court in Khekh Ram versus State of Himachal Pradesh (supra) and the decision rendered by a Coordinate Bench of this Hon'ble High Court in Kesha versus State of Madhya Pradesh (supra) are taken into consideration then I am of the opinion that I.A.No.21128/2022 deserves to and is hereby allowed.

It is directed that the execution of remaining part of the jail sentence imposed upon the appellant No.2 Ram Prakash Patel shall remain suspended Signature Not Verified Signed by: AMIT JAIN Signing time:

12/21/2022 11:11:58 AM

during pendency of this appeal and he shall be released on bail on his furnishing a personal bond in sum of Rs.1,00,000/- (Rupees One Lakh Only) with two solvent sureties of the like amount each to the satisfaction of the Trial Court for his appearance before the Court of Special Judge (N.D.P.S Act) Anuppur once in every six months on the dates given by that Court in this regard.

I.A.No.21128/2022 stands allowed & disposed of.

(VIVEK AGARWAL) JUDGE

amit

Signature Not Verified Signed by: AMIT JAIN Signing time:

12/21/2022 11:11:58 AM