Madhya Pradesh High Court
Nikki Khtuliya vs The State Of Madhya Pradesh on 21 December, 2023
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 8267 of 2023
(NIKKI KHTULIYA Vs THE STATE OF MADHYA PRADESH)
Dated : 21-12-2023
Shri Daya Ram Sharma- Advocate for appellant.
Shri Prabhat Pateriya- Panel Lawyer for respondent- State.
Heard on IA No. 15970 of 2023, second application under Section
389(1) Cr. P.C. moved on behalf of the appellant seeking suspension of
sentence and grant of bail. First suspension application (IA No. 13842 of 2023)
was dismissed as withdrawn vide order dated 28-07-2023.
Appellant stood convicted under Section 8 read with Section 20(b)(ii)(B)
of the NDPS Act and sentenced to undergo RI for four years with a fine of
Rs.10,000/- with default stipulation vide judgment of conviction and order of
sentence dated 21-06-2023 passed by Special Judge (NDPS Act), Datia (MP)
in Special Case No.02 of 2019.
Learned Counsel for appellant submits that independent witnesses Ashiq
Ali (P.W.1), Parshuram Kushwah (PW2) and Shehjad Khan (PW3) did not
support the prosecution. Referring to the evidence of Investigation Officer-
Ajay Chanana (P.W.6), learned Counsel contends that the evidence of
Investigation Officer suffers from contradictions and inconsistencies with
regard to seizure as well as sampling of alleged contraband. Provisions of
Sections 42, 52, 57 of NDPS Act have not been complied with and non-
compliance of aforesaid mandatory provisions along with doubtful evidence
with regard to seizure as well as sampling and chain of custody goes to the root
of prosecution. The contraband was not produced before the Trial Court.
Learned Counsel further submits that the 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 contradictions and omissions in the evidence of witnesses. Learned
counsel further submits that appellant remained in custody for a period of six
months during trial and from the date of impugned judgment i.e. 21-06-2023, he
is in custody. There is no likelihood of early hearing of the appeal in the near
future. On these premised submissions, learned counsel prays that the execution
o f remaining jail sentence of appellant may be suspended and he may be
enlarged on bail during pendency of the instant appeal.
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 the
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 first on 01-02-2024 and on
further dates as may be fixed by the Registry in this regard till final disposal of
the instant appeal.
Accordingly, aforesaid IA stands allowed and disposed of.
Certified copy as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
MKB
