Madhya Pradesh High Court
Gourav Sirvi vs The State Of Madhya Pradesh on 28 April, 2023
Author: Vijay Kumar Shukla
1
HIGH COURT OF MADHYA PRADESH AT INDORE
CRIMINAL APPEAL NO.4961 OF 2022
(Gourav Sirvi and Another vs The State of Madhya Pradesh)
Indore, Dated 28.04.2023
Mr. Kaushal Singh Sisodiya, counsel for the appellants.
Mr. Surendra Gupta, counsel for the respondent/State.
Heard on IA No.580/2023 which is first application under
Section 389 (1) of Criminal Procedure Code, 1973, for suspension
of jail sentence filed on behalf of appellants who have been
convicted by the Court of learned Special Judge, NDPS Act, 1985,
Indore (MP) in Special NDPS Case No.12/2013 vide judgment
dated 25.03.2022 and has been sentenced them as under:
Conviction Sentence
Section & Act Imprisonment Fine Imprisonment in
Amount lieu of fine
Section 20(b)(ii) 07 years RI 30,000/- 01 year additional
(b) NDPS Act, RI
1985.
Counsel for the appellants submits that the appellants has
already undergone jail sentence of two years two months out of
seven years of imprisonment. The quantity which is alleged to be
seized from the joint possession of accused persons is 19
kilograms of Ganja which is less than the commercial quantity. It
is further submitted that the trial Court in para-22 has held that
HIGH COURT OF MADHYA PRADESH AT INDORE
CRIMINAL APPEAL NO.4961 OF 2022
(Gourav Sirvi and Another vs The State of Madhya Pradesh)
provisions of Section 42 of NDPS Act were not complied with and
the intimation to the senior officer as envisaged under sub-section
2 of Section 42 of the Act has not been proved. Ex.P/31 was not
proved by the prosecution, however, the trial Court has held that
the provision of Section 42 would not apply in the facts of the
present case and the case would be covered under Section 43 of
NDPS Act. He further submits that the trial Court has taken a
wrong view in the present case as the seizure of the contraband
was made from private vehicle and not from the public transport in
public place. He further submits that conveyance is included under
Section 42(1) of the Act. In support of his submission, he has
placed reliance on a judgment passed by the Apex Court dated
16.04.2021 (Bhuta Singh vs. State of Haryana in CRA
No.421/2021) whereby the accused was acquitted for non-
compliance of Section 42 of the Act.
Counsel for the State opposes the prayer for grant of bail.
After hearing learned counsel for the parties and taking into
consideration the fact the trial Court has held in para-22 that the
prosecution has not complied with the provisions of Section 42(2)
of the Act and the provisions of Section 43 would be applicable
HIGH COURT OF MADHYA PRADESH AT INDORE
CRIMINAL APPEAL NO.4961 OF 2022
(Gourav Sirvi and Another vs The State of Madhya Pradesh)
which is contrary to the view taken by the Apex Court in the case
of Bhuta Singh (supra), the alleged quantity of contraband is less
than the commercial quantity and the appellants have already
undergone the jail sentence of two years two months and the final
hearing of appeal is likely to take time, it would be appropriate to
suspend the jail sentence of the appellants. Accordingly,
application IA No.580/2023 is allowed.
It is directed that substantive jail sentence of appellants
shall be suspended subject to their depositing the fine amount (if
not already deposited) and on furnishing a personal bond in the
sum of Rs.1,00,000/-(Rupees One Lakh) each with one local
solvent surety each of like amount to the satisfaction of trial Court
for their appearance before the Registry of this Court on
28.08.2023 and on all other subsequent dates as may be fixed by
the Registry in this behalf. Accordingly, application IA
No.580/2023 is disposed of and IA No.581/2023 which is an
application for urgent hearing also stands disposed of.
List the appeal for final hearing in due course.
(VIJAY KUMAR SHUKLA)
JUDGE
Arun/-
Digitally signed by ARUN NAIR
Date: 2023.04.28 18:56:54
+05'30'
HIGH COURT OF MADHYA PRADESH AT INDORE
CRIMINAL APPEAL NO.4961 OF 2022
(Gourav Sirvi and Another vs The State of Madhya Pradesh)
