Rahul Harod vs The State Of Madhya Pradesh
2023 Latest Caselaw 6974 MP

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   HIGH COURT OF MADHYA PRADESH AT INDORE
             CRIMINAL APPEAL NO.3418 OF 2022
               (Rahul Harod vs The State of Madhya Pradesh)


Indore, Dated 28.04.2023
      Mr. Akash Rathi, counsel for the appellant.
      Mr. Surendra Gupta, counsel for the respondent/State.

Heard on IA No.196/2023 which is second application under Section 389 (1) of Criminal Procedure Code, 1973, for suspension of jail sentence of appellant - Rahul Harod S/o Shri Mukesh Harod who has 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 him 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.

The earlier application was dismissed as withdrawn. Counsel for the appellant submits that the appellant has already undergone jail sentence of two years and three months out of seven years of imprisonment. The quantity which is alleged to be seized from the joint possession of accused

HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.3418 OF 2022 (Rahul Harod vs The State of Madhya Pradesh)

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 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.

HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.3418 OF 2022 (Rahul Harod vs The State of Madhya Pradesh)

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 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 appellant has already undergone the jail sentence of two years and three months and the final hearing of appeal is likely to take time, it would be appropriate to suspend the jail sentence of the appellant. Accordingly, application IA No.196/2023 is allowed.

It is directed that substantive jail sentence of appellant shall be suspended subject to his 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) with one local solvent surety of like amount to the satisfaction of trial Court for his 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.196/2023 stands

HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.3418 OF 2022 (Rahul Harod vs The State of Madhya Pradesh)

disposed of.

List the appeal for final hearing in due course. Certified copy as per Rules.

(VIJAY KUMAR SHUKLA) JUDGE Arun/-

Digitally signed by ARUN NAIR Date: 2023.04.28 18:56:28 +05'30'

HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.3418 OF 2022 (Rahul Harod vs The State of Madhya Pradesh)