Madhya Pradesh High Court
Jagdish vs The State Of Madhya Pradesh on 21 April, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 172 of 2020
(JAGDISH Vs THE STATE OF MADHYA PRADESH)
Dated : 21-04-2023
Shri Abhay Saraswat - Advocate for the appellant.
Shri Vishal Sanothiya - Govt. Advocate for the respondent.
1. Heard on admission.
2. Admit.
3. Also heard on IA No.26707/2021, which is first application for suspension of
sentence on behalf of appellant No.1 Jagdhish.
4. The appellant has been convicted under section 8/18(B) of the NDPS Act
and sentenced to undergo RI for 10 years with fine of Rs.1,00,000/- with
default stipulation.
5. The prosecution case is that on a secret information, the police intercepted
a vehicle and found 10 kg opium from the appellant and another co-accused.
6. Learned counsel for the appellant submits that the prosecution has failed
to prove that the appellant had knowledge that the other co-accused 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 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
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SAN SOUMYA RANJAN
DALAI
reported in (2002) 7 SCC 419.
Date: 2023.04.21
18:09:09 IST
7. Learned counsel for the appellant submits that the appellant has already
undergone more than 50% actual jail sentence. He has completed jail sentence
more than 5 years out of 10 years imprisonment. In support of his submission,
has placed reliance on the Division Bench judgment of this Court in the case of
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 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.
8. 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
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SAN SOUMYA RANJAN
DALAI
Date: 2023.04.21
18:09:09 IST 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.
9. 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 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.
1 0 . Apart from merits, the appellant has already undergone 50% of jail
sentence 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.
11. Accordingly , I.A No.26707 of 20213 filed on behalf of appellant is
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SAN SOUMYA RANJAN
allowed. The appellant be enlarged on bail on his furnishing a personal bond in
DALAI
Date: 2023.04.21
18:09:09 IST
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.
12. As a consequence application for urgent hearing stands disposed off.
13. List for final hearing in due course.
(VIJAY KUMAR SHUKLA)
JUDGE
soumya
Signature Not Verified
VerifiedDigitally
Digitally signed by
SAN SOUMYA RANJAN
DALAI
Date: 2023.04.21
18:09:09 IST
