Kamlesh vs The State Of Madhya Pradesh
2023 Latest Caselaw 21945 MP

Madhya Pradesh High Court

Kamlesh vs The State Of Madhya Pradesh on 20 December, 2023

Author: Hirdesh

Bench: Hirdesh

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 6074 of 2023 (KAMLESH AND OTHERS Vs THE STATE OF MADHYA PRADESH)

Dated : 20-12-2023 Shri Shreyash Pandit & Shri Vikash Chouksey - Advocate for the

appellant.

Shri P.Soni - P.L. for the State.

Considered I.A.No.9832/2023, which is first application u/s 389(1) Cr.P.C. on behalf of appellants No.1, 2 & 3, namely, Kamlesh, Jaihind Yadav

and Abbas Khan.

Vide impugned judgment dated 26.4.2023 passed in SC NDPS No.08/2018 by Special Judge (NDPS Act), Damoh the appellants/applicants have been convicted for offences under sections 20(B)(ii)(b) each and sentenced to undergo R.I. 04 years each with fine of Rs.10,000/- each with default stipulations.

Learned counsel for the appellants submitted that impugned judgment is bad in law and evidence. The trial Court failed to seek that seizure witness-Jhallu Singh (PW.1) and Santosh Patel (PW.2) have not supported the prosecution

case and they have been declared hostile. Teh trial Court further failed to see that independent witnesses, namely, Rajkumar Pathak (PW.6) and Piyush Gupta (PW.7) have not supported the prosecution case and they have also been declared hostile. The Police has not produced the seized articles before the Court. The appellants have been falsely implicated on the basis of false seizure. The provisions of sections 50 & 51 of NDPS Act have not been complied with. All the packets have been clubbed together and thereafter the sample were taken. He further submitted that according to provision the sample must be

taken of each and every packet separately. The prosecution should not have clubbed the packets with each other. Learned counsel cited the decision in the case of Arif Khan Vs. State of Uttarakhand, (2018) 18 SCC 380 wherein the Apex Court in paragraph 24 has held that prosecution has not complied with the provisions of section 50 of the NDPS Act. He further cited the case of Union of India Vs. Mohanlal and another, (2016) 3 SCC 379 wherein the Apex Court in paragraphs 12 & 17 observed that question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of Magistrate doe snot in the above scheme of things arise. Hence, learned counsel prayed for suspension of sentence of appellants and grant of bail.

Learned Panel Lawyer has opposed the prayer for suspension of sentence and grant of bail.

Heard learned counsel for the parties and perused the record. Considering the over all facts and circumstances of the case, evidence of Police Officer, Exhibit-P/2 and paragraph 10 of the judgment, final disposal of this appeal would take time and without commenting on merits of the case, the application is allowed.

Subject to depositing the fine amount (if not already deposited), the remaining jail sentence of this appellants is hereby suspended and it is directed that appellants-Kamlesh, Jaihind Yadav and Abbas Khan be released on bail on his furnishing a personal bond for a sum of Rs.1,00,000/- (Rupees One lac only) each with one solvent surety each of the like amount to the satisfaction of the concerned trial Court with a further direction to appear before concerned trial Court, on 20th of March, 2024 and also on such other dates as may be fixed by the trial Court in this regard during the pendency of this appeal.

I.A.No.9832/2023 is allowed.

(HIRDESH) JUDGE

RM