Madhya Pradesh High Court
Omprakash vs Union Of India on 26 July, 2023
Author: Prakash Chandra Gupta
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 7958 of 2022
(OMPRAKASH Vs UNION OF INDIA)
Dated : 26-07-2023
Shri Abhishek Rathore - Advocate for the appellant.
Shri Manoj Kumar Soni - Advocate for the respondent.
Heard on I.A. No.5046/2023, 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 - Om Prakash.
Learned trial Court has convicted the appellant under Section 8/18(b) of
NDPS Act and sentenced to undergo ten years' RI with fine of Rs.1,50,000/-
with default stipulation, vide judgement of conviction and order of sentence
dated 18.07.2022 passed by the Special Judge, NDPS Act, 1985, Jawad,
District Neemuch in Special NDPS Case No.77/2017.
As per prosecution case, on 12.10.2011, at 11:00 AM, the respondent
had received a secret information that the accused persons Narayan, Om
Prakash (present appellant) and Jawan Singh alongwith motorcycles bearing
registration No.RJ-30-SE-6234; MP-44-MD-4717 and MP-44-MC-9591
respectively, were about to take around 35 Kg of Opium to Bhilwada, Rajasthan
on 13.10.2011 in between 5:00-7:00 AM. A team was formed and on
13.10.2011, at 04:00 AM, the team reached the location. At 06:30 AM, the
aforesaid team saw 3 motorcycles were coming towards Palrakheda. They
stopped motorcycle of co-accused Narayan, the remaining 2 motorcycles were
behind the co-accused Narayan, but both the other co-accused persons left
their motorcycle in between the way and fled away. 13.550 Kg of Opium was
found during the search of motorcycle of Narayan in 4 plastic packets. The
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Signed by: SHRUTI JHA
Signing time: 28-07-
2023 11:23:08
aforesaid Opium was seized from the co-accused Narayan. Motorcycle bearing
registration No.MP-44-MD-4717 and MP-44-MC-9591, as per secret
information, were being driven by present appellant and co-accused Jawan
Singh, respectively. Both the bikes were searched and 12.550 Kg and 8.750 Kg
of Opium was found in the dickey of the aforesaid motorcycles respectively,
which was seized by the NCB team. The appellant had been absconded since
the date of incident and was arrested after more than 06 years and 06 months.
He disclosed in his statement u/S 67 of the NDPS Act, 1985 that he was
carrying Opium in his motorcycle and after seeing the Police, he left the
motorcycle on the spot and fled away.
Learned counsel for the appellant submits that he has not committed the
offence and has falsely been implicated in the case. No contraband substance
was recovered from the conscious possession of the appellant. His
identification is not established. Test Identification Parade was not carried out.
Dock identification of the appellant is not reliable. Incident has occurred in early
morning. Therefore, identification of the appellant is doubtful. Name of the
appellant is Om Prakash Bawri s/o Mangilal Ji Bawri, but as per registration
certificate, name of the alleged owner of the motorcycle is Om Prakash
Chowdhary s/o Mangilal, therefore, ownership of the alleged motorcycle is also
doubtful. The Apex Court has granted bail to the co-accused Narayan Singh.
Appellant has served incarceration of more than 05 years i.e., more than 50% of
the jail sentence. He placed reliance on the case of Sabir V State Of Madhya
Pradesh And Anr. [2023 SAR (Cri) 257]; Kanwar Lal V Union Of India
[CRA No.7219/ 2022, order dated 18.04.2023] and Suresh V State OF
M.P. [CRA No.4302/2022, order dated 18.04.2023]. He further submitted
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2023 11:23:08
that on these grounds, the remaining sentence of the appellant may be
suspended and he may be released on bail.
On the other hand, learned counsel for the respondent has opposed the
application for suspension of sentence and grant of bail by submitting that at the
time of the incident the appellant was identified by the respondent's team and he
was also identified by the witnesses in the trial Court. Involvement of the
accused in the offence is also established in the case. As per Paragraph 51 and
52 of the impugned judgment the appellant has admitted himself as registered
owner of the alleged motorcycle. Seized contraband substance was in
commercial quantity recovered from the appellant's motorcycle. The appellant
had absconded for 06 years and 06 months and thus, the expectancy to
abscond again cannot be denied. He placed reliance on the case of State
(GNCT Of Delhi) Narcotics Control Beaureu V Lokesh Chadha [CRA No
257/2021, judgment dated 02.03.2021.
I have heard learned counsel for the parties and perused the records.
In the case of Sabir (Supra), the appellant was convicted u/S 8/18 of the
NDPS Act and was sentenced to undergo rigorous imprisonment for 10 years
with fine of Rs.1,00,000/- with default stipulations. He had served 05 years and
08 months of jail sentence, therefore, the appellant was granted bail by the Apex
Court. In the case of Kanwar Lal (Supra) and Suresh (Supra), the
concerning appellants had served 50% of the incarceration and therefore, the
Coordinate Bench of this Court has granted bail to the appellant.
In the case of Lokesh Chadha (Supra) in Paragraph 9 and 10 has held
as under:-
"9. While considering the rival submissions, we must at the
outset advert to the manner in which the learned Single
Judge of the High Court has dealt with the application for
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Signed by: SHRUTI JHA
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2023 11:23:08
suspension of sentence under Section 389(1) of CrPC. The
offence of which the respondent has been convicted by the
Special Judge arises out of the provisions of Sections 23(c)
a n d 25A of the NDPS Act. The findings of the learned
Special Judge which have been arrived at after a trial on
the basis of evidence which has been adduced indicate that
the respondent who was a proprietor of a courier agency
was complicit with a foreign national in the booking of two
parcels which were found to contain 325 grams of heroin
and 390 grams of pseudoephedrine. Section 37 of the
NDPS Act stipulates that no person accused of an offence
punishable for offences under Section 19 or Section 24 or
Section 27A and also for offences involving a commercial
quantity shall be released on bail, where the public
prosecutor opposes the application, unless the Court is
satisfied "that there are reasonable grounds for believing
that he is not guilty of such offence and that he is not likely
to commit any offence while on bail". Where the trial has
ended in an order of conviction, the High Court, when a
suspension of sentence is sought under Section 389(1) of
CrPC, must be duly cognizant of the fact that a finding of
guilt has been arrived at by the Trial Judge at the
conclusion of the trial. This is not to say that the High Court
is deprived of its power to suspend the sentence under
Section 389(1) of CrPC. The High Court may do so for
sufficient reasons which must have a bearing on the public
policy underlying the incorporation of Section 37 of the
NDPS Act. At this stage, we will refer to the decision of a
two-Judge Bench of this Court in Preet Pal Singh v State of
Uttar Pradesh (2020) 8 SCC 645 where Justice Indira
Banerjee, speaking for the Court, observed as follows:
"35. There is a difference between grant of bail under
Section 439 of the CrPC in case of pre-trial arrest and
suspension of sentence under Section 389 of the CrPC
and grant of bail, post-conviction. In the earlier case
there may be presumption of innocence, which is a
fundamental postulate of criminal jurisprudence, and the
courts may be liberal, depending on the facts and
circumstances of the case, on the principle that bail is the
rule and jail is an exception, as held by this Court in
Dataram Singh v. State of U.P. and Anr . (supra).
However, in case of post- conviction bail, by suspension
of operation of the sentence, there is a finding of guilt
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2023 11:23:08
and the question of presumption of innocence does not
arise. Nor is the principle of bail being the rule and jail
an exception attracted, once there is conviction upon
trial. Rather, the Court considering an application for
suspension of sentence and grant of bail, is to consider
the prima facie merits of the appeal, coupled with other
factors. There should be strong compelling reasons for
grant of bail, notwithstanding an order of conviction, by
suspension of sentence, and this strong and compelling
reason must be recorded in the order granting bail, as
mandated in Section 389(1) of the Cr.P.C."
"10. The principles which must guide the grant of bail in a
case under the NDPS Act have been reiterated in several
decisions of this Court and we may refer to the decision in
State of Kerala v Rajesh (2020) 12 SCC 122. The High
Court unfortunately, in the present case, has not applied its
mind to the governing provisions of the NDPS Act. On the
basis of the material which emerged before the learned
Special Judge and which forms the basis of the order of
conviction, we are of the view that no case for suspension of
sentence under Section 389(1) of CrPC was established.
The order granting suspension of sentence under Section
389(1) of CrPC is unsustainable and would accordingly
have to be set aside."
Considering the facts and circumstances of the case, and the material
which was produced before the learned trial Court, forming the basis of the
order of conviction, in view of this Court, no case for suspension of sentence is
made out. Accordingly, I.A. No.5046/2023 u/S 389(1) for suspension of
sentence and grant of bail to the appellant is hereby rejected.
List the case for final hearing in due course.
(PRAKASH CHANDRA GUPTA)
JUDGE
Shruti
Signature Not Verified
Signed by: SHRUTI JHA
Signing time: 28-07-
2023 11:23:08
