Madhya Pradesh High Court
Kushal Singh vs Central Bureau Of Narcotics on 12 May, 2023
Author: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 3495 of 2023
(KUSHAL SINGH Vs CENTRAL BUREAU OF NARCOTICS)
Dated : 12-05-2023
Shri Santosh Kumar Meena - Advocate for appellant.
Shri Manoj Kumar Soni - Advocate for respondent/CBN.
Heard on I.A.No. 3488/2023, which is first application under Section
389(1) of Cr.P.C. for grant of bail and suspension of remaining jail sentence on
behalf of appellant Kushal Singh.
2/ Appellant stands convicted under Section 18(B) of NDPS Act and
has been sentenced to undergo 10 years RI with fine of Rs. 1 lakh with usual
default stipulation.
3/ Learned counsel for the appellant submits that appellant is an innocent
person and he has been falsely implicated in this matter. The prosecution has
not complied with provisions of sections 57, 42,50,52-A and 55 of NDPS Act.
PW-2 and PW-3 have not supported the case of prosecution. The appellant
did not give any consent for his search. There is strong case in favour of
appellant but final conclusion of this appeal will take sufficient long time. The
appellant remained in custody from 27.8.2013 to 22.7.2019, during trial and
after trial he is in custody since 28.1.2023 till date. He has suffered jail
incarceration for the period of more than six and half years which is 60% of the
awarded jail sentence. Hence he prays that remaining jail sentence of appellant
be suspended and he be granted bail.
4/ Per contra, learned counsel for the respondent / State opposes the
application for suspension of sentence and prays for its rejection by submitting
that it is a case of illegal transportation of contraband of more than commercial
Signature Not Verified
Signed by: BHUNESHWAR
DATT
Signing time: 13-05-2023
16:21:30
quantity, therefore, as per section 32-A of NDPS Act suspension of sentence is
not permissible in case of commercial quantity. He has placed reliance upon
judgment dated 28.3.2023 arising out of SLP (Cri.) No. 2351 of 2023 in the
matter of Union of India Vs. Ajay Kumar Singh @ Pappu whereby the
order passed by the High court suspending the jail sentence of accused has
been set aside in view of provisions of section 37 of NDPS Act.
5/ Both the parties heard at length and perused the record.
6/ The Hon'ble Apex court in the case of Dr. Rohit Kumar Vs.
Secretary Office of Lieutenant Governor of Delhi and others reported in
(2021) 8 SCC 381 has held as under:-
33. It is well settled that a judgment is an authority
for the issue of law which is raised and decided.
What is binding on the Courts is what the Supreme
Court decides under Article 141 and not what the
Supreme Court does under Article 142, in exercise of
its power to do complete justice in any cause or
matter pending before it.
7/ In the case of Union of India Vs. Rattan Mallik @ Habul
reported in (2009) 1 SCC (Cri) 831 it has been held as under:-
15. Bearing in mind the above broad principles, we
may now consider the merits of the present appeal. It is
evident from the afore-extracted paragraph that the
circumstances which have weighed with the learned
Judge to conclude that it was a fit case for grant of bail
are:(i) that nothing has been found from the possession
of the respondent; (ii) he is in jail for the last three
years, and (iii) that there is no chance of his appeal
being heard within a period of seven years. In our
opinion, the stated circumstances may be relevant for
grant of bail in matters arising out of the conviction
under the Penal Code 1860 etc.but are not sufficient to
satisfy the mandatory requirements as stipulated in
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Signed by: BHUNESHWAR
DATT
Signing time: 13-05-2023
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clause (b) of sub-section (1) of Section 37 of NDPS
Act.
8/ The Hon'ble Apex court vide judgment dated 2.3.2023 passed in
Criminal Appeal No. 257 of 2021 in the case of The State (GNCT of Delhi)
Narcotics Control Bureau Vs. Lokesh Chadha has held as under:-
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 Vs. Rajesh. 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 Cr.P.C. was established. The
order granting suspension of sentence under section
389(1) of Cr.P.C. is unsustainable and would
accordingly have to be set aside.
9/ Although learned counsel for appellant has placed before this Court
an order dated 28.3.2023 passed by Hon'ble Apex court arising out of SLP
(Cril) No. 915 of 2023 in the case of Mohd Muslim @ Hussain Vs. State
(NCT of Delhi) and order dated 13.7.2015 passed in SLP (Cri.) No. 1408 of
2015 in the matter of Union of India Vs. Ismile whereby the Hon'ble Apex
court has released the appellant on bail for the offence under sections 25 and 29
of NDPS Act, but the order passed by the Hon'ble Apex court in the above
cases is in respect of under trial matters and not in the case of convicts.
Therefore, these citations do not attract in the present case. He also placed
reliance upon order dated 10.2.2023 passed by Hon'ble Apex court in the case
of Sabir Vs. State of Madhya Pradesh in SLP (Cr.) No. 10515 of 2019 and
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Signed by: BHUNESHWAR
DATT
Signing time: 13-05-2023
16:21:30
order dated 5.1.2023 passed in SLP (Cr.) No. 6657/2020 in the matter of
Shafeeque Vs. The State of Kerala, order dated 6.12.2021 passed in Cri.A.
No. 1562 of 2021 in the matter of Mossa Koya KP Vs. State (NCT of Delhi)
and order dated 11.9.2020 passed in Cri.A. Nos. 585-586 of 2020 in the matter
of Sheru Vs. Narcotics Control Bureau. But in the case of Sheru (supra), the
Hon'ble Apex court has suspended the jail sentence of accused due to covid
pandemic situation with a specific clarification that the order has been passed in
the given facts of the case and not to be treated as a precedent.
10/ It is also noteworthy that the Hon'ble Apex court has granted
suspension of sentence in most of the cases in which the appeal is pending
before the Hon'ble court, therefore, above citations are not applicable in the
instant case.
11/ After going through the law laid down by the Hon'ble Apex court, as
discussed above, this court is of the considered view that as per Section 32A of
NDPS Act, no sentence awarded under this Act (other than Section 27), can be
suspended. There is specific bar under section 37 of NDPS Act since the
contraband is more than the commercial quantity. The trial court has convicted
the appellant for the offence under section 18B of NDPS Act on the basis of
cogent evidence, therefore, there is no reasonable ground for believing that he is
not guilty of such offence and he will not likely to commit any offence while on
bail.
12/ Hence, IA No. 3488/2023 for suspension of remaining jail sentence
and grant of bail under section 389(1) of Cr.P.C. filed by appellant is hereby
rejected.
(ANIL VERMA)
Signature Not Verified
Signed by: BHUNESHWAR
DATT
Signing time: 13-05-2023
16:21:30
JUDGE
BDJ
Signature Not Verified
Signed by: BHUNESHWAR
DATT
Signing time: 13-05-2023
16:21:30
