Abdul Hamid vs Union Of India
2022 Latest Caselaw 1669 MP

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                                           The High Court Of Madhya Pradesh
                                                     CRA No. 932 of 2020
                                                       (ABDUL HAMID AND OTHERS Vs UNION OF INDIA)

                                   Indore, Dated : 07-02-2022
                                          Shri Amit Sisodia, learned counsel for the appellants.

                                          Shri Manoj Kumar Soni, learned counsel for the respondent/NCB.

Heard through Video Conferencing.

Matter is listed for arguments on I.A. No. 16108/2021 filed on dismissed as withdrawn vide order dated 10.08.2021.

Today, matter is listed for arguments on pending I.A. No. 28203/2021,

which is an application u/S 389(1) of Cr.P.C. on behalf of appellant no. 1 - Abdul Hamid.

Heard on I.A.No.28203/2021, first application under Section 389(1) of Cr.P.C. for suspension of sentence and grant of bail filed on behalf of appellant No.1.

Appellants have been convicted under Section 8/20(b) of NDPS Act a n d sentenced to suffer 10 years rigorous imprisonment with fine of Rs.1,00,000/- with default clause of 02 years imprisonment in the event of non-payment of fine vide judgment dated 02.08.2019 passed by Special

Judge (NDPS) District-Indore in Special Session Trial No. 10/2018.

Prosecution story, in brief, is that on 10.10.2015, appellant no.1 alongwith appellant no. 2 was found carrying 501 kg 850 grams cannabis(ganja) in truck bearing no. AP 29 TA 3448 without having any license or authority.

Shri Sisodia, learned counsel for the appellant No.2 while criticizing the impugned judgment has made submissions that the Court below has not appreciated the evidence brought on record in right perspective. Serious infirmity in the matter of search and weighment of seized substance have been overlooked. Material omissions and contradictions in the statement of the prosecution witnesses have been ignored. The judgment as such is perverse Signature Not Verified SAN in nature.

Digitally signed by SEHAR HASEEN Date: 2022.02.10 14:49:26 IST

W hile elaborating his submission, learned counsel submits that mandatory provisions of Section 42, 50, 52 & 52-A of the NDPS Act were not complied with in the matter. Hence, the entire search was vitiated. Moreso, CCTV footage of toll naka from where the aforesaid truck carrying contraband was said to be passed through has not been recovered and

produced. Seizure was not made on the spot where the aforesaid vehicle was intercepted and as per the prosecution case itself, contraband was seized next day at the office of NCB. Seizure witnesses have not supported the prosecution story. Seized contraband was not produced in the Court at the time of evidence. He relies upon the judgment passed by this Court reported in ILR [2015]M.P. 2184[Kanhaiyalal Vs. State of M.P.] Learned counsel alternatively submits that on the same set of evidence co-accused persons have been acquitted while appellant is languishing in jail since long and has suffered more than half of the sentence out of total sentence of ten years awarded by the impugned. In support of his contention, learned counsel for the appellants relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Mayuresh Nandkumar Purohit Vs. Kaushik Manna & Anr. reported in 2018 Cr.L.R. (SC) 251 , this Court may consider enlargement of appellant No.1 on bail. There is no likelihood of its final hearing in near future. During Covid-19 pandemic the regular appeals are not being taken up for consideration on merits, therefore, prays for suspension of sentence and grant of bail to appellant No.1 - Abdul Hamid on such terms and conditions this Court deems fit and proper.

Per contra, learned counsel for the respondent opposes the prayer while supporting the impugned judgment and submits that the Court below has exhaustively dealt with the evidence led by the prosecution. He further submits that as appellant no.1 alongwith appellant no.2 was found carrying the seized contraband before sunset, therefore no search warrant was required in the matter. Notice u/S 50 of the NDPS Act was not required in the

Signature Not Verified SAN matter. Even though, provisions of Section 42, 50, 52, 52-A of NDPS Act

Digitally signed by SEHAR HASEEN Date: 2022.02.10 14:49:26 IST

were duly complied with. Appellant no.1 himself admitted during his statement recorded u/S 67 of the NDPS Act that he was carrying the seized contraband. During cross-examination of prosecution witnesses, it has been suggested on behalf of appellant no. 1 that he was intercepted by the NCB authorities on the spot. Therefore, CCTV footage of the toll naka from which the truck has passed through is not required at all in the matter. Since huge quantity of contraband was found in his possession and there was no facility of getting the contraband weighed as it was dark, appellants were taken alongwith the truck bearing registration no. AP 29 TA 3448 to the office of NCB from where contraband was seized from their possession. After complying with the provisions of Section 52-A of the NDPS Act,

seized material was produced in the Court during trial. Prosecution witnesses have very well proved the aforesaid fact. It has been informed by the jail authorities that proper treatment is being given to the appellant no. 1. Application filed on behalf of appellant no.2- u/S 389(1) of Cr.P.C. bearing I.A. No. 16108/2021 has also been dismissed as withdrawn and there is no circumstantial change in the matter thereafter, on the basis of which appellant no.1 can be said to be entitled for suspension of sentence and grant of bail. Learned counsel for the respondent/CBN relied upon the judgment of Hon'ble Supreme Court passed in SLP(Crl) arising out of Cr.A. No. 257 of 2021[The State of (Gnct of Delhi) Vs. Lokesh Chadha. Appellant no.1 was the driver of the aforesaid vehicle and he himself has admitted his guilt. Hence, I.A. No. 28203/2021 deserves to be rejected.

Having considered the rival submissions, material pointed out by learned counsel for both the parties as well as on perusal of the record reveals that provisions of Section 42, 50, 52 and 52-A of NDPS Act have been complied with. Appellant no.1. himself admitted his guilt and during cross- examination of witnesses, it has been suggested on behalf of appellant no. 1 that he was intercepted by the NCB Authorities at the spot on the date of incident and was brought to the office of NCB, so also considering the huge Signature Not Verified SAN

Digitally signed by SEHAR HASEEN Date: 2022.02.10 14:49:26 IST

quantity of contraband seized, no case for suspension of sentence is made out.

Consequently, I.A. No. 28203/2021 is hereby rejected. List in due course.

E-Certified copy as per rules.

(SATYENDRA KUMAR SINGH) JUDGE

sh

Signature Not Verified SAN

Digitally signed by SEHAR HASEEN Date: 2022.02.10 14:49:26 IST