Jagdish vs The State Of Madhya Pradesh
2023 Latest Caselaw 7026 MP

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                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                      AT INDORE
                                                       CRA No. 10658 of 2019
                                                  (JAGDISH Vs THE STATE OF MADHYA PRADESH)

                           Dated : 01-05-2023
                                  Shri Ritu Raj Bhatnagar, learned counsel for the appellant.

                                  Shri Vishal Panwar, learned G.A for the respondent/State.

1. Heard on I.A No.6011/2023, which is second application for suspension of sentence under Section 389(1) of Cr.P.C filed on behalf of appellant No.1 Jagdish Banjara.

2. The appellant has been convicted under section 8/18(B) of the NDPS Act and sentenced to undergo RI for 10 years with fine of Rs.1,00,000/- with default stipulation.

3. The prosecution case is that on a secret information, the police intercepted a vehicle and found 10 kg opium from the appellant and another co-accused.

4. Learned counsel for the appellant submits that the appellant has already undergone more than 50% actual jail sentence. He has completed jail sentence more than 5 years out of 10 years imprisonment. In support of his submission, has placed reliance on the Division Bench judgment of this Court in the case of

Sanjay vs. State of Madhya Pradesh (Criminal Appeal No.104 of 2015 dated 17.01.2022) wherein after relying on the judgment passed by the Apex Court in the case of Thana Singh vs. Central Bureau of Narcotics passed in Civil Appeal No.1640/2010 dated 30.08.2010 held that if the period of custody undergone by the accused is more than 50% of the sentence i.e. awarded, then the application for suspension of sentence may be considered on the said ground. He has further also placed reliance on the recent judgment passed by the Apex Court in the case of Mohammad Muslim @ Hussain vs. State (NCT Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 01-05-2023 18:30:47

of Delhi) [Criminal Appeal No. 943/2023, dtd. 28.03.2023], wherein, the Apex Court has taken into consideration the earlier judgments passed by the Apex Court in the case of State of M.P. vs. Kajad (2001) 7 SCC 673 and also the judgment passed in the case of Union of India vs. Ratan Malik (2009) 2 SCC 624 and thereafter enlarged the accused on bail on completion of 50% of the actual jail sentence. He further relied on the judgment passed by the Apex Court in the case of Sabir Vs. State of MP and Anor reported in 2023 SAR (Cri) 257, where the jail sentence of the appellant was suspended and he was released on bail on the ground that he has already undergone five years and two months of custody under trial prisoner and as a convict.

5. Learned counsel for the respondent supported the order of conviction and sentence and submitted that the prosecution has made recovery of the contraband from the joint possession of the accused persons and the quantity of the seized contraband is more than commercial quantity and therefore, there would be presumption of knowledge of the contraband being carried by the other co-accused. He also placed reliance on an order passed by the Apex Court in the case of Union of India Vs. Ajay Kumar Singh @ Pappu arising out of SLP (Cri.) No.2351/2023, whereby, the order passed by the High Court suspending the jail sentence of the accused has been set aside in view of the provisions of section 37 of the NDPS Act. The order passed by the Apex Court in the case of Moh.Muslim (supra) is in respect of under trial prisoners and not in the case of convicts, therefore, would not apply to a convict in appeal.

6. In this regard, after hearing learned counsel for the parties and taking into consideration the submissions of the learned counsel for the appellant that the

Signature Not Verified appellant was sitting on the back and the prosecution case failed to prove the Signed by: PRAMOD KUSHWAHA Signing time: 01-05-2023 18:30:47

knowledge of carrying the contraband by the co-accused, as held by the Apex Court in the case of Sorabhkhan (supra) and in the case of Avtar Singh (supra) that the person merely sitting on the back in absence of proof of knowledge could not be presumed to be in possession of goods.

7. Apart from merits, the appellant has already undergone 50% of jail sentence the Apex Court in the case of Moh. Muslim (supra) has observed after considering the judgment passed in the case of Union of India Vs. Ratan reported in (2009) 2 SCC 624 that the courts have to be sensitive in respect of weakest economic strate, immediate loss of livelihood and in several cases, scattering of families as well as loss of family bonds and alienation from society because in the event of acquittal, the lost to the accused is irreparable.

8. Accordingly, I.A No.6011/2023 filed on behalf of appellant Jagdish Banjara is allowed. The appellant be enlarged on bail on his furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One Lac only) with one solvent surety of the same amount to the satisfaction of the trial Court, for his appearance before the Registry of this Court on 28.08.2023 and thereafter, on such other subsequent dates as may be fixed in that behalf.

9. List for final hearing in due course.

(VIJAY KUMAR SHUKLA) JUDGE

Pramod

Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 01-05-2023 18:30:47