Madhya Pradesh High Court
Rambharose Ahirwar vs The State Of Madhya Pradesh on 12 December, 2023
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 13111 of 2023
(RAMBHAROSE AHIRWAR Vs THE STATE OF MADHYA PRADESH)
Dated : 12-12-2023
Shri Rajendra Singh Yadav Advocate for the appellant.
Shri Dheeraj Budholiya, Panel Lawyer for respondent/State.
Heard on IA No. 19169 of 2023, application under Section 5 of the
Limitation Act for condonation of delay in filing the appeal.
There is delay of 21 days in filing the appeal. The application is
supported by an affidavit.
Considering the reasons assigned in the application, IA No. 19169 of
2023 is allowed and delay in filing the appeal is hereby condoned.
Also heard on question of admission.
Record of the trial Court has been received.
Appeal being arguable, is admitted for final hearing.
Further, heard on IA No.19158 of 2023, first application under Section
389(1) Cr.P.C. moved on behalf of appellant Rambharose Ahirwar seeking
suspension of jail sentence and grant of bail.
Appellant stood convicted under Section 8 read with Section 20(ii)(kha)
of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter would
be referred to as ''the NDPS Act') and sentenced to undergo three year's RI
with fine of Rs.3,000/- with default stipulations, vide judgment of conviction
and sentence dated 22nd of July, 2023 passed by Special Judge (N.D.P.S Act,
1985) Vidisha (M.P.) in Special NDPS Case No.04 of 2019.
Learned Counsel for the appellant referring to Para 19 of judgment of
Supreme Court in the case of State of Rajasthan Vs. Parmanand, (2014) 5
SCC 345, Para 4 of judgment in case of Dayalu Kashyap Vs. State of
Chhattisgarh, (2022) 12 SCC 398 and Ranjan Kumar Chaddha Vs. State
of Himachal Pradesh, (2023) SCC Online SC 1262, submits that giving
third option to the accused to get himself searched from Investigation officer,
vitiates recovery of contraband. Learned counsel referring to Ex.P5 as well as
statements of Investigation Officer- Ravi Rao (PW8) and Kapil Narwale
(PW11), submits that the Investigation Officer has given third option of search
which was not contemplated in sub-section (1) of Section 50 of the NDPS Act.
Therefore, the recovery stands vitiated in the matter.
Learned Counsel for the appellant also contends that impugned judgment
passed by learned Trial Court is based on assumption, conjectures and
surmises. The learned Trial Court has committed an error in convicting and
sentencing the present appellant without appreciating the prosecution evidence
properly. There are material contractions and omissions in the evidence of
witnesses.
Learned Counsel further contends that appellant is physically disabled by
one lower limb. No criminal antecedent is reported against him. The appellant
has already undergone six months of custody. Fine amount has already been
deposited by the appellant. There is no likelihood of early hearing of appeal in
n e a r future. On these grounds, learned Counsel prays that execution of
remaining jail sentence of appellant may be suspended and he may be enlarged
on bail.
Per contra, learned Counsel for respondent State opposes the
application and prays for its rejection.
Upon hearing learned Counsel for the parties but without commenting
upon rival contentions touching merits of the case, this Court is of the view that
application deserves to be allowed. It is, accordingly directed that execution of
remaining jail sentence of appellant shall remain suspended during pendency of
this appeal and he shall be enlarged on bail subject to furnishing personal bond
in the sum of Rs.50,000/- (Rupees fifty thousand only) with one solvent
surety in the like amount to the satisfaction of Trial Court and also subject to
deposit of the fine amount (if not already deposited) for his appearance before
the Registry of this Court on 12-01-2024 and on further dates as may be
directed by the Registry in that regard.
Accordingly, aforesaid IA stands allowed and disposed of.
List the matter for final hearing in due course.
Certified copy as per rules
(SANJEEV S KALGAONKAR)
JUDGE
MKB
