Kodulal vs The State Of Madhya Pradesh
2022 Latest Caselaw 1606 MP

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         THE HIGH COURT OF MADHYA PRADESH
                          CRA-7658-2021
                     (Kodulal vs The State of M.P.)

Jabalpur, Dated 04-02-2022.

       Heard through Video Conferencing
       Shri Ghanshyam Pandey, counsel for the appellant.

       Shri   Yashovardhan     Shukla,    Panel       Lawyer   for   the

respondent/State.

Heard on I.A No. 22308/2021, which is the first application

under Section 389 (1) of the Code of Criminal Procedure for

suspension of custodial sentence of the appellant Kodulal who has

been convicted and sentenced as under-

     Convicted                      Sentenced to
     under Section

8/20 (b) (ii) 8 months RI and fine of Rs.2,000/- in (B) NDPS default of fine further R.I. for one month Act

2. Learned counsel began with the argument that the appellant

is 74 years of age, therefore, his sentence should be suspended. He

referred to order of a Division Bench of this Court passed in CRA

No. 3223/2014 wherein relying upon judgment of Hon'ble

Supreme Court passed in Anil Ari v. State of West Bengal (AIR

2009 SC 1564), this Court has suspended the sentence of the

applicant therein on account of age of 72 years.

3. He vehemently and repeatedly submitted that on this count

alone, the sentence of the appellant should be suspended.

4. Learned Panel Lawyer for the State has opposed the prayer.

5. Both the cases referred to by the learned counsel for the

applicant are related to murder and other offences under Indian

Penal Code and septuagenarian appellants therein were convicted

with other co-accused persons. Their sentences were suspended

considering their age in the backdrop of peculiar facts and

circumstances of the case. But in the case in hand, the evidence

shows that the offence has been committed by a 'fully conscious'

'sole' applicant at the age of 68 years. Looking to the object of the

NDPS Act and scheme of stringent punishment and purpose

thereof no leniency is expected, when nothing is pointed out to

doubt the culpability and when there is nothing to show that the

offence was not committed with conscious mind. Thus, in the

considered opinion of this Court, sentence should not be

suspended on the sole ground urged before this Court.

6. The other grounds taken are that independent witnesses have

turned hostile, provisions of Sections 42, 50 of the Act have not

been complied with, property was not produced in the Court (PW-

5 Paragraph 17) and original Crime number was found on seized

article (PW5 paragraph 12), but non supporting attitude of

independent witnesses is a common phenomenon and law is well

settled that it does not affect the prosecution case adversely. Other

contentions are contrary to the record. The property was produced

in the Court (note appended after paragraph 11 PW-5). Therefore,

on these grounds also, no case for suspension is made out. Hence,

the application is dismissed.

7. However, liberty is granted to the appellant to move an

application for urgent final hearing of the appeal, if he wishes to

do so. If such an application is filed, list the matter for final

hearing on any final hearing day falling immediately after filing of

the application. Otherwise, list as per scheme in vogue.

(Virender Singh) JUDGE

vivek

VIVEK KUMAR TRIPATHI 2022.02.11 10:28:17 +05'30'