Devilal vs The State Of Madhya Pradesh
2023 Latest Caselaw 4074 MP

Citation : 2023 Latest Caselaw 4074 MP
Judgement Date : 15 March, 2023

Madhya Pradesh High Court

Devilal vs The State Of Madhya Pradesh on 15 March, 2023

Author: Vijay Kumar Shukla

                                                                      1
                                                IN THE HIGH COURT OF MADHYA PRADESH
                                                              AT INDORE
                                                               CRA No. 8245 of 2018
                                                   (DEVILAL AND OTHERS Vs THE STATE OF MADHYA PRADESH)



                                   Dated : 15-03-2023


                                         Shri Deepak Kumar Rawal with Shri Anil Ojha, counsel for the
                                   appellant No1/Devilal.
                                         Shri Neelesh Dave, counsel for appellant No.2/Ramcharan.
                                         Shri Sudhanshu Vyas, P.L. for respondent/State.

Heard on I.A.Nos. 1636/2021 which is third application and I.A.no.

29259/2021 which is second application under section 389 Cr.P.C. for suspension

of sentence and grant of bail moved on behalf of appellants Devilal and

Ramcharan.

The earlier applications were not decided on merits

Appellants have been convicted under Section 8/18(B) of NDPS Act and

sentenced to undergo 10 years RI with fine of Rs.1,00,000/- each with default

stipulation vide judgment dated 9.10.2018 passed by Special Judge, NDPS Act,

Neemuch in Special (NDPS) case No. 18/2012.

As per prosecution case, on 7.12.2011, police got information regarding

transportation of contraband article and acting upon on the said information, they

rached on the spot and intercepted a motorcycle bearing No. MP44MC 1651 and

it is alleged that there is recovery of 4 kg. Opium from the possession of both the

appellants. Thereafter offence under section 8/18 of NDPS Act at cime No.

646/2011 was registered against the appellants

Learned counsel for the appellants submit that provisions of section 42 and

50 of NDPS Act have not been complied with. It is stated that as per the Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 16-Mar-23 10:40:53 AM

statement of PW-5, Satyanarayan, it is evident that sample of seal was not

deposited in the Malkhana along with seized articles. Further, the provisions of

section 57 of the Act have also not been complied with as no intimation was sent

to the Magistrate. They referred to the statement of Vijayesh Yadav. It is further

submitted that Satish who had taken the sample, has not been examined. He stated

that Gazetted Officer, CSP was out of station. The Gazetted Officer has not been

examined. It is further submitted that Sahmati Panchnama Ex.P/10 was obtained

from the appellants to get personal search through Investigating team giving third

option. Obtaining third option for search is contrary to section 50 of NDPS Act.

sent case is not a case of personal search but even in such cases, the third option

cannot be given. In support of his submission, learned counsel for appellants

placed reliance on the judgment passed by apex Court in the case of State of

Rajasthan Vs. Parmanand, (2014) 5 SCC 345 wherein it is held that - in view

of the provisions of section 50 of NDPS Act, the right available to an accused

person, to be searched before a Gazetted Officer or a Magistrate, will be frustrated

in case, a clear, unambiguous and individual offer is not given. It was further held

that resort to third option is contrary to section 50 of the NDPS Act. It is further

submitted that independent witnesses have not supported the prosecution case.

Learned counsels further submit that appellants have undergone jail sentence of

more than 5 years,, thus they have suffered more than 50% of the jail sentence.

There is no likelihood of early hearing of appeal in near future. Hence, it is

prayed that application for suspension of sentence be allowed.

Learned counsel for the respondent/State opposes the prayer for suspension

of sentence and submits that present case is not a case of personal search and

therefore, non-compliance of provisions of section 50 of the NDPS Act would not

render the conviction illegal. It is further submitted that in a case of NDPs Act, the Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 16-Mar-23 10:40:53 AM

conviction can be based on the testimony of Investigating Officer. He referred to

the statement of PW-9, Avinash Shrivastava. He also relied on the following

judgments :- P.P. Fathima Vs. State of Kerala, 2003(8) SCC 726, Baldevsingh

Vs. State of Haryana, 2015(17) SCC 554, State of Himachal Vs Pradeep

Kumar, 2018(13) SCC 808.

After hearing learned counsel for the parties and taking into consideration the

Sahmati Panchnama (Ex.P/10) where the Investigating Officer had given third

option to the accused persons which has been held by the apex Court to be

contrary to the provisions of section 50 of the NDPs Act and also the fact that

appellants have undergone 50% of the jail sentence and hearing of the appeal is

likely to take time, this Court is of the considered view that it is a fit case for

suspension of the sentence and grant of bail to the appellants. Hence, without