Prakash Sahu vs The State Of Madhya Pradesh
2023 Latest Caselaw 9891 MP

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 11176 of 2022 (PRAKASH SAHU Vs THE STATE OF MADHYA PRADESH)

Dated : 30-06-2023 Ms.Prachi Tiwari- counsel for the appellant.

Shri Vijay Kumar Verma- Panel Lawyer for the State.

Considered I.A.No.22789/2022, which is first application under section 389(1) of Cr.P.C. for suspension of sentence and grant of bail on behalf of appellant-Prakash Sahu, who has been convicted by the impugned judgment

dated 14.11.2022 passed by the Special Judge (NDPS), Damoh in SC NDPS Case No.01/2018 under section 20(b)(ii)(B) of NDPS Act and sentenced to undergo R.I. for 07 years with fine of Rs.20,000/- with default stipulations.

Learned counsel for the appellant submitted that appellant is innocent and has been falsely implicated in the crime in question. The prosecution has failed to prove the case beyond reasonable doubt. The trial Court has not considered contradictions, omission and improvements. No offence u/s 20(b)(ii)(B) of NDPS is made out. There independent witnesses who have not supported the

prosecution case. If it is case of prosecution that ganja was seized from possession of appellant, there should be notice u/s 50 of the Act. In such notice it is not mentioned that accused is having right to get himself searched before Gazetted Officer or Magistrate. The accused was not informed regarding consent for search before the Gazetted Officer or Magistrate and, therefore, he was entitled to be acquitted. The 'ganja' was not seized from exclusive possession of the appellant, not produced during trial, not kept in safe custody, information to superior officer not sent. The appellant is not having criminal Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 03-07-2023 20:16:47

record. During trial he was on bail. Final disposal of this appeal would take considerable time. Learned counsel for the appellant has placed reliance on the decision in the case of Prabha Yadav Vs. State of M.P ., 2017 (3) MPLC 162 (MP), Ramchandra Vs. State of M.P. , 2001 (3) Crimes 293, Ashok alias Dangra Jaiswal Vs. State of M.P. , AIR 2011 SC 1335, Jitendra and another Vs. State of M.P. , AIR 2003 SC 4236, Dilip and another Vs. State of M.P. , (2007) 1 SCC 450, Balu Vs. State of Rajasthan, 2004 (3) Crimes 143, Jameela Vs. State of Kerala and another, 2004 Cri.L.J. 859 and Shiv Kumar Vs. State of Chhattisgarh, 2006(2) Crimes 323. He also produced copies of orders dated 03.12.2019, 15.2.2023 & 20.4.2023 passed in Cr.A.No.6163/2019 [Ravendra

Sharma Vs. State of MP], Cr.A.No.75/2023 [Sonu Thakur Vs. State of MP] and Cr.A.No.10251/2022 [Ghanshaym Vs. State] in support of his contention that in somewhat similar circumstances in NDPS cases benefit of suspension of sentence has been given by the Coordinate Bench. Hence, prayer has been made to suspend the jail sentence of the appellant.

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

Heard the learned counsel for the parties and perused the record. All the case laws of Jitendra (supra), Balu (supra), Dilip (supra), Ashok (supra), Ramchandra (supra), Prabhu (supra), Jameela (supra), and Shiv Kumar (supra) related to acquittal, whereas presently this Court is considering the issue relating to suspension of sentence to accused/appellant.

Considered the rival contentions. Recently, the Apex Court in the case of The State (GNCT of Delhi) Narcotic Control Bureau Vs. Lokesh Chadha ,

Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 03-07-2023 20:16:47

[Criminal Appeal No.257/2021] vide decided dated 02.3.2021 deprecated the practice of suspension of sentence after conviction without strong reasons in the matter of narcotic substances. [Paragraphs 09 to 12 are relevant]. The coordinate Bench in Criminal Appeal No.6163/2019 vide decision dated 03.12.2019 sentence of 10 years with fine was suspended after accused had served the custody for more than 04 years. Another Co-ordintate Bench in Cr.A.No.1903/2023 by order dated 08.2.2023 in the NDPS matter, in which, the accused was punished for 02 years imprisonment with fine and accused had served more than 20 months and had no criminal antecedents and contraband seized was 2.70 Kgs. had declined to suspend the sentence.

Considering the overall facts and circumstances of the case, statements of witnesses, accused remained in short period of custody i.e. from 03.12.2017 to 19.1.2018, and thereafter from the date of judgment and taking into account the broad principles laid by Apex Court in the case of Lokesh Chadha (supra) and prima facie looking to the judgment of the trial Court and arguments submitted for suspension of sentence in the case, this Court finds, at this stage it is not proper to suspend jail sentence of accused/appellant. Hence, prayer for suspension of sentence of appellant stands rejected.

Accordingly, I.A.No.22789/2022 stands dismissed.

(AVANINDRA KUMAR SINGH) JUDGE

RM

Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 03-07-2023 20:16:47