Madhya Pradesh High Court
Vinod Kumar vs The State Of Madhya Pradesh on 21 September, 2022
Author: Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 5208 of 2022
(VINOD KUMAR Vs THE STATE OF MADHYA PRADESH)
Dated : 21-09-2022
Shri Anil Ojha, learned counsel for the appellant.
Shri Viraj Godha, learned Panel Lawyer for the respondent-State.
Heard on I.A.No.8437/2022, which is first application filed under Section
389(1) of Cr.P.C, for suspension of jail sentence moved on behalf of the
appellant - Vinod Kumar.
Appellant has been convicted for the offence punishable under Sections
8/18(c) of NDPS Act and sentenced to undergo 04 years RI with fine of
Rs.20,000/- with default stipulation vide judgement dated 13.06.2022 passed by
the Additional Sessions Judge, Indore in SCNDPS No.947/2017.
Prosecution case in brief is that on 28.03.2017 after receiving secret
information, I/O Pramod Singh Bhadoriya, went to platform no.2 of Railway
Station Shyamgarh and found appellant carrying a bag on his shoulder. After
complying with the provision of Section 50 of NDPS Act, I/O made search of
the appellant and seized about 1 kg of oppium in the bag carrying by the
appellant. Thereafter, sample was taken and seizure proceeding was conducted.
After completion of investigation, charge sheet was filed under Section 8/18(c)
of NDPS Act.
Learned counsel for the appellant submits that appellant has been falsely
implicated in the matter. Provision of Section 50 and 52(A) of NDPS Act were
not complied with. Seized contraband was neither destroyed nor produced in
the Court during trial, therefore, learned trial Court has committed error in
convicting the appellant guilty. Appellant's mother is suffering from cancer and
there is no one to look after her. 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 of the appellant and grant of the bail to the appellant.
Learned counsel for the appellant has relied the judgments passed by the
Apex Court in the case of Dilip & another Vs. State of MP (Cr.A. No.1480
of 2004), Sharif Husain Raja Vs. Pratap Singh Pawar [2013 Cr.L.R.
(M.P.)15] and Union of India vs. Mohanlal & ors. (Cr.A No.652of 2012)
to bolster his submission.
Learned Panel Lawyer for the respondent-State opposes the prayer with
the submission that it is apparent from the evidence produced on record that
provisions of Section 50 of NDPS act were very well complied with at the time
of seizure. Sample of seized contraband was produced during trial and
proceeding under Section 52(A) of NDPS Act has also been conducted by the
Executive Magistrate. Huge quantity of contraband has been seized from the
possession of the appellant. Documents produced by the appellant with regard
to the illness of his mother itself shows that she is is suffering from breast
cancer and she is outdoor patient of Dr.Prabhat Kumar. In view of the above,
no case for grant of suspension is made out.
Heard learned counsel for parties and perused the record.
From the statement of prosecution witnesses recorded during trial, it is
apparent that sample of seized contraband was produced in the Court. It is
apparent from the finding given in Para 40 of impugned judgment that
proceedings of Section 52-A of NDPS Act were also conducted by the
Executive Magistrate. As mentioned in the judgment passed by the Apex Court
in the case of Dilip & another Vs. State of MP (supra) cited by the appellant,
provisions of Section 52 and 57 of NDPS Act are by themselves not
mandatory. It has not been brought on record as to how non compliance of the
aforesaid provisions were prejudice to the appellant. Therefore, at this stage,
considering the quantity of seized contraband and also considering over all
material produced on record, appellant does not deserve to be enlarged on bail.
Accordingly, IA No.8437/2022 stands dismissed.
(SATYENDRA KUMAR SINGH)
JUDGE
Vibha
VIBHA PACHORI
2022.09.22
18:15:47 +05'30'
