Madhya Pradesh High Court
Pappu vs The State Of Madhya Pradesh on 20 December, 2023
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 9855 of 2023
(PAPPU Vs THE STATE OF MADHYA PRADESH)
Dated : 20-12-2023
Shri Abhishek Rathore, learned counsel for the appellant.
Shri K. K. Tiwari, learned Govt. Advocate for the respondent/State.
Heard on I.A. No.16202/2023, which is first application filed under
Section 389 (1) of Cr.P.C. for suspension of jail sentence and grant of bail
moved on behalf of appellant - Pappu Bhambhi S/o Late Devilal Ji
Bhambhi.
2. Learned Trial Court has convicted the present appellant under Section
8/18 of the NDPS and sentenced him to undergo RI for 15 years with fine of
Rs.1,50,000/- with default stipulation, vide judgement of conviction and order
of sentence 27/4/2023 passed by the Special Judge, (NDPS Act), Manasa,
District - Neemuch(M.P.) in Special S.T. (NDPS) No.05/2017.
3. Prosecution story found to be proved is that on 07/04/2017 Assistant
Sub-Inspector of Police Station - Manasa, got a secret information from the
informer that the accused named Pappu(present appellant) from Aankli is
coming and will be going towards Rajasthan and is having possession of illegal
contraband(opium). Upon acting on the information, the police party reached at
the place of incident. During investigation, the accused was brought to police
station for the enquiry and upon search, the police seized 15 Kg 400 gms opium
from the tin box which the accused was carrying. Accordingly case has been
registered.
4. Learned counsel for the appellant submits that present appellant has
not committed the offence and he has falsely been implicated in the case. The
appellant has been convicted only on the basis of presumption made under
Section 35(1) of the NDPS Act. The seizure witnesses did not support the case
of prosecution and turned hostile. The mandate of Sections 42, 50, 52A, 55 and
57 of the NDPS Act was not followed, in as much as, the seizure was not made
in front of the Magistrate. The samples were drawn from the place of incident
itself. In support of his contention, learned counsel for the appellant has placed
reliance on the case of Simranjeet Singh Vs. State of Punjab reported in
2023 Live Law SC 570 and contended that the Magistrate has to certify the
correctness of the inventory and also certified that all such drugs and substance
have been taken before the Magistrate and to draw representative samples in the
presence of the Magistrate who is required to certify the correctness of list of
samples so drawn.
5. It is further submitted that as per Section 32(B) of the NDPS Act, if
higher punishment is imposed than the minimum punishment prescribed, then
special reasons have to be assigned by the Magistrate for doing so. In the
present case, the punishment imposed is 15 years whereas the mandate of
Section 32B of the NDPS Act have not been followed. Since the appeal is of
the year 2023, final hearing of this appeal is not possible in near future and the
appellant has incarcerated in jail about 5 years and 8 months, therefore, it is
prayed that the remaining jail sentence may be suspended and present appellant
may be released on bail.
6. Learned Government Advocate for the respondent/State supported the
impugned judgment and prays for rejection of application for suspension of
sentence.
7. We have heard learned counsel for the parties and perused the record.
8. Having considered the rival submissions, so also the fact that final
hearing of this appeal is not possible in near future therefore, considering the
custodial period of the appellant, without expressing any opinion on the merits
of the case, I.A.No.16202/2023 is allowed.
9. It is directed that subject to depositing the fine amount, if already not
deposited, the substantive jail sentence of appellant - Pappu Bhambhi S/o
Late Devilal Ji Bhambhi. shall remain suspended till the final disposal of the
appeal and he be released on bail, on furnishing personal bond in the sum of
Rs.1,00,000/ -(Rupees One Lakh Only) alongwith one solvent surety in the
like amount to the satisfaction of Trial Court, for his appearance before the
concerned trial Court firstly on 5.2.2024, and on such other dates, as may be
fixed by the said Court in this regard.
11. List the matter for final hearing in due course.
Certified copy, as per rules.
(S. A. DHARMADHIKARI) (PRANAY VERMA)
JUDGE JUDGE
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