Antim Chawda vs Union Of India Through Praveen ...
2023 Latest Caselaw 419 MP

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 IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
DIVISION BENCH :          HON'BLE SHRI JUSTICE VIVEK RUSIA
                          HON'BLE SHRI JUSTICE ANIL VERMA

                          Criminal Appeal No.8700 of 2018
  Antim Chawda v/s Union of India Through Praveen Kunderiya Inspector
Indore, dated 06.01.2023
           Shri Abhishek Rathore, learned counsel for the appellant.
           Shri         Manoj      Kumar         Soni,    learned       counsel      for       the
respondent/Union of India.

Heard on I.A. No.27490/2021, which is third application under Section 389(1) of the Code of Criminal Procedure, 1973 for suspension of jail sentence and grant of bail filed on behalf of appellant Antim Chawda.

Earlier applications for suspension of jail sentence of appellant were dismissed as withdrawn vide orders dated 02/07/2020 & 26/03/2021.

Vide judgment of conviction and sentence dated 02/11/2018 passed by the Special Judge, N.D.P.S. Act, Neemuch, District Neemuch in Special Sessions Trial No.4/2016, whereby the appellant was sentenced to undergo as under:-

              CONVICTION                                             SENTENCE
 Section          Act           Imprisonment        Fine if deposited   Imprisonment in lieu of
                                                         details                fine
 8/21(C)      NDPS              10 years' R.I.       Rs.1,00,000/-         1 year Addl. R.I.

As per prosecution story, a discrete information was received on 18/08/2015 that two persons namely Prakash Bind and Gautam Sav are carrying 1 Kg. of Heroin and they are coming from Revtipur Gazipur, (U.P.) to deliver the same to Madan Singh resident of Gandhisagar Neemuch. On the basis of said information, the police started searching train as well as bus. On 19/08/2015, a bus bearing registration No.MP-44-

HA-1198 was apprehended and search was started. In that search, co- accused Gautam was found sitting on a third seat carrying a bag and appellant Antim Chawda was sitting beside him. They were personally searched but nothing was found. Thereafter, the bag was searched in which 850 grams of Heroin was found alongwith clothes and railway ticket. The statements of appellant Antim and co-accused Gautam were recorded under Section 67 of NDPS Act and both were made accused in this case. After undergoing trial, both have been convicted under Section 8/21(c) of NDPS Act.

Learned counsel for the appellant submits that nothing has been recovered from the possession of the appellant. His name did not appear in the discrete information. He was sitting in the bus next to co-accused Gautam, therefore, he has been falsely implicated. At that time, the statement recorded under Section 67 of NDPS Act was admissible but now as per the law laid down by the Apex Court in the case of Toofan Singh Vs. State of Tamil Nadu reported as 2020 SCC online SC 882, the statement recorded under Section 67 of NDPS Act is inadmissible. Therefore, he is entitled for acquittal as well as suspension of jail sentence.

Learned counsel for the respondent/Union of India opposes the application and submitted that he has been implicated only on the basis of statement recorded under Section 67 of NDPS Act which was admissible at the relevant point of time.

Heard.

Keeping the aforesaid, we are of the considered opinion that the application for suspension of custodial sentence moved on behalf of the appellant deserved to be allowed.

Accordingly, I.A. No.27490/2021, is allowed and it is directed that

subject to depositing fine amount and on furnishing personal bond by the appellant-Antim, in the sum of Rs.50,000/- (Rupees Fifty Thousands Only) with one solvent surety in the like amount to the satisfaction of the learned trial Court for his appearance before the Court, the execution of custodial part of the sentence shall remain suspended, till the final disposal of this appeal. The appellant after being enlarged on bail, shall mark his presence before the Registry of this Court on 13/03/2023 and on all such subsequent dates, as may be fixed by the Registry of this Court in this regard.

Also, I.A. No.27490/2021 stands disposed off.

List the case for final hearing in due course.

Certified copy, as per rules.

                                    (VIVEK RUSIA)                                      (ANIL VERMA)
                                      JUDGE                                              JUDGE
                         vs


Digitally signed by VARSHA SINGH
Date: 2023.01.07 11:03:34 +05'30'