Sarfaraj Sheikh vs The State Of Madhya Pradesh
2023 Latest Caselaw 7396 MP

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                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT INDORE
                                                        CRA No. 5873 of 2023
                                             (SARFARAJ SHEIKH Vs THE STATE OF MADHYA PRADESH)

                           Dated : 08-05-2023
                                 Shri Ravi Sagre, learned counsel for the appellant.

                                 Shri Vinod Thakur, learned G.A. for the respondent/State.

1. Heard on I.A No.6180/2023, which is an application for condonation of delay.

2. There is delay of 331 days.

3. This is an appeal arising out of order of conviction and sentence.

4. Considering the grounds mentioned in the application, the delay is condoned.

5. The connected appeals arising out of the same order of conviction and sentence has already been admitted. This appeal is also admitted.

6. Also, heard on I.A No.6182/2023, which is first application under Section 389 of Cr.P.C for suspension of sentence filed on behalf of appellant Sarfaraj Sheikh mainly on the ground that out of 10 years jail sentence the appellant has already undergone 7 years of jail sentence.

7. The appellant has been convicted and sentenced as under:-

Fine if Imprisonment Section Act Imprisonment deposited, in lieu of fine details NDPS 8/18(B) 10 years R.I Rs.1,00,000/- 1 year R.I.

Act

8. Counsel for the appellant submits that appellant has already undergone 7 years of jail sentence out of jail sentence of 10 years i.e more than 50% of actual jail sentence of 10 years RI.

9. Counsel for the State supports the order of conviction and sentence. Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 09-05-2023 18:45:49

10. Learned counsel for the appellant 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

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 jail sentence of more than 7 years out of 10 years jail sentence.

11. After hearing learned counsel for the parties and taking into consideration the fact that the appellant has already undergone jail sentence of more than 7 years out of 10 years jail sentence and the judgment passed by 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

Signature Not Verified (2009) 2 SCC 624 that the courts have to be sensitive in respect of weakest Signed by: PRAMOD KUSHWAHA Signing time: 09-05-2023 18:45:49

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.

12. Accordingly, I.A No.6182/2023 filed on behalf of appellant Sarfaraj Sheikh 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 local surety of the same amount to the satisfaction of the trial Court, f o r 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.

13. With the aforesaid I.A is allowed and disposed off.

14. List the matter in due course.

CC as per rules.

(VIJAY KUMAR SHUKLA) JUDGE

Pramod

Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 09-05-2023 18:45:49