Nilesh Kumar Jain vs The State Of Madhya Pradesh
2023 Latest Caselaw 1827 MP

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE CRA No. 11535 of 2022 (NILESH KUMAR JAIN Vs THE STATE OF MADHYA PRADESH)

Dated : 01-02-2023 Shri Lucky Jain - Advocate for appellant.

Shri Tarun Pagare - PL for State.

Heard on IA No.15850/2022 an application for suspension of sentence u/S.309 of the Cr.P.C.

The appellant Nilesh Kumar Jain has been convicted u/S.25 read with

Sec.15(c) of the NDPS Act and sentenced to undergo RI for 10 years with fine of Rs.1,00,000/- with default stipulation.

According to the prosecution story, one truck bearing MP09-K-6330 was intercepted by P.S. Namli on 25.9.2003 and arrested the driver of the vehicle Omprakash. The said truck was found to be having 65 bags containing 2560 kg poppy straw. According to the prosecution, the registered owner of the vehicle Munavvar Khan had sold the said vehicle to the appellant by executing an agreement Ex.P/3 and the possession of the truck was handed over to him. The said truck with the knowledge of the appellant was used for illegal transportation

of contraband having huge quantity of poppy straw.

Counsel for appellant submits that the ownership of the vehicle is disputed and the appellant is not a registered owner. It is further submitted that the prosecution has failed to prove the knowledge of use of the vehicle for being involved in the commission of the offence, and, therefore, the jail sentence of the appellant be suspended. In support of his submissions he has placed reliance on a judgment passed by co-ordinate bench in the case of Kalekhan and Ors. Vs. State of MP & Ors. decided on 31.8.1989 in Cr.A. Signature Not Verified Signed by: VARGHESE MATHEW Signing time: 01-02-2023 17:55:14

No.201 and 393 of 1988 and also the orders passed by the Apex Court in the case of Balwinder Singh & Ors. Vs. Asstt. Commissioner, Customs and Central Excise decided on 22.2.2005 in Cr.A. No.547/2004 and Bhola Singh Vs. State of Punjab decided on 8.2.2011 in Cr.A. No.448/2006 wherein it has been held that the prosecution has to discharge initial burden regarding the knowledge of use of the vehicle for commission of the offence.

Counsel for State opposed the prayer for grant of suspension of sentence.

After hearing learned counsel for parties it is found that the agreement Ex.P/3 between owner Munavvar Khan and the present appellant has been duly

proved by the witnesses and it has been established that the ownership of the truck was transferred to the appellant. The prosecution has further established that it was within the knowledge of the appellant regarding use of vehicle in commission of offence. The initial burden was discharged by the prosecution and, therefore, as per the provisions of Sec.35 of the NDPS Act, the burden was on the appellant to prove that the vehicle was used in commission of offence without his knowledge. The appellant failed to discharge his burden. The judgments relied by the learned counsel for appellant would not apply to the facts and evidence of the present case.

In view of the aforesaid, I do not find any case for grant of suspension of sentence. The application is dismissed.

(VIJAY KUMAR SHUKLA) JUDGE

VM Signature Not Verified Signed by: VARGHESE MATHEW Signing time: 01-02-2023 17:55:14

Signature Not Verified Signed by: VARGHESE MATHEW Signing time: 01-02-2023 17:55:14