Madhya Pradesh High Court
Kanwarlal vs Union Of India on 18 April, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 7219 of 2022
(KANWARLAL Vs UNION OF INDIA)
Dated : 18-04-2023
Shri Abhishek Rathore - Advocate for the appellant.
Shri Manoj Soni - Advocate for the respondent.
1. Heard on IA No.1372/2023, which is first application for suspension
of sentence on behalf of appellant Kanwarlal.
2. The appellant has been convicted under section 8/18 of the NDPS
Act and sentenced to undergo RI for 10 years with fine of Rs.1,00,000/-
and default stipulations.
3. The prosecution case is that on a secret information, the police
intercepted a vehicle and asked their names and found 3 kg 100 grams of
opium, which was tied up on the stomach of co-accused Vikram Singh
who was sitting at the back of present appellant. The allegation against the
appellant is that he was driving the motorcycle and the illegal opium has
been seized from joint possession of the present appellant and co-accused
Vikram Singh.
4. Learned counsel for the appellant submits that the prosecution has
failed to prove that the appellant had knowledge that the other co-accused
Vikram Singh was carrying contraband and was conniving with the said
accused in carrying with the contraband. Since the prosecution has failed
to prove the knowledge on the part of the present appellant, the conviction
is prima-facie unsustainable. In support of his submissions, he has placed
Signature Not Verified
Signed by: SOURABH
YADAV
Signing time: 20/04/2023
10:11:17 AM
reliance on the judgment passed by the Apex Court in the case of
Sorabkhan and Anor Vs. State of Gujarat reported in (2004) 13 SCC
608 and Avtar Singh and Ors Vs. State of Punjab reported in (2002) 7
SCC 419. Apart from the aforesaid submission he also submitted that the
appellant has already undergone the jail sentence of more than five year
and eight months and final hearing of the appeal would take time.
5. Learned counsel for the appellant in support of his submission, has
placed reliance on the Division Bench judgment of this Court in the case
o f Sanjay vs. State of Madhya Pradesh (Criminal Appeal No.104 of
2015 dated 17.01.2022) wherein after relying on the judgment passed by
the Apex Court in the case of Thana Singh vs. Central Bureau of
Narcotics passed in Civil Appeal No.1640/2010 dated 30.08.2010 held
that if the period of custody undergone by the accused is more than 50%
of the sentence i.e. awarded, then the application for suspension of
sentence may be considered on the said ground. He has further also
placed reliance on the recent judgment passed by the Apex Court in the
case of Mohammad Muslim @ Hussain vs. State (NCT of Delhi)
[Criminal Appeal No. 943/2023, dtd. 28.03.2023], wherein, the Apex
Court has taken into consideration the earlier judgments passed by the
Apex Court in the case of State of M.P. vs. Kajad (2001) 7 SCC 673 and
also the judgment passed in the case of Union of India vs. Ratan Malik
(2009) 2 SCC 624 and thereafter enlarged the accused on bail on
completion of 50% of the actual jail sentence. He further relied on the
judgment passed by the Apex Court in the case of Sabir Vs. State of MP
and Anor reported in 2023 SAR (Cri) 257, where the jail sentence of the
Signature Not Verified
Signed by: SOURABH
YADAV
Signing time: 20/04/2023
10:11:17 AM
appellant was suspended and he was released on bail on the ground that he
has already undergone five years and two months of custody under trial
prisoner and as a convict.
6. Learned counsel for the respondent supported the order of conviction
and sentence and submitted that the prosecution has made recovery of the
contraband from the joint possession of the accused persons and the
quantity of the seized contraband is more than commercial quantity and
therefore, there would be presumption of knowledge of the contraband
being carried by the other co-accused. He also placed reliance on an order
passed by the Apex Court in the case of Union of India Vs. Ajay Kumar
Singh @ Pappu arising out of SLP (Cri.) No.2351/2023, whereby, the
order passed by the High Court suspending the jail sentence of the
accused has been set aside in view of the provisions of section 37 of the
NDPS Act. The order passed by the Apex Court in the case of
Moh.Muslim (supra) is in respect of under trial prisoners and not in the
case of convicts, therefore, would not apply to a convict in appeal.
7. In this regard, after hearing learned counsel for the parties and taking
into consideration the submissions of the learned counsel for the appellant
that the appellant was sitting on the back and the bag with contraband was
being carried by co-accused and the prosecution case failed to prove the
knowledge of carrying the contraband by the co-accused, as held by the
Apex Court in the case of Sorabhkhan (supra) and in the case of Avtar
Singh (supra) that the person merely sitting on the back in absence of
proof of knowledge could not be presumed to be in possession of goods.
Signature Not Verified
Signed by: SOURABH
YADAV
Signing time: 20/04/2023
10:11:17 AM
8. Apart from merits, the appellant has already undergone jail sentence of
five years eight months the Apex Court in the case of Moh. Muslim
(supra) has observed after considering the judgment passed in the case of
Union of India Vs. Ratan reported in (2009) 2 SCC 624 that the courts
have to be sensitive in respect of weakest economic strate, immediate loss
of livelihood and in several cases, scattering of families as well as loss of
family bonds and alienation from society because in the event of acquittal,
the lost to the accused is irreparable.
9. Accordingly , I.A No.1372 of 2023 filed on behalf of appellant is
allowed. The appellant be enlarged on bail on his furnishing a personal
bond in the sum of Rs.1,00,000/- (Rupees One Lac only) with one solvent
surety of the same amount to the satisfaction of the trial Court, for his
appearance before the Registry of this Court on 28.08.2023 and thereafter,
on such other subsequent dates as may be fixed in that behalf.
(VIJAY KUMAR SHUKLA)
JUDGE
Sourabh
Signature Not Verified
Signed by: SOURABH
YADAV
Signing time: 20/04/2023
10:11:17 AM
