Madhya Pradesh High Court
Bheem Jatav vs The State Of Madhya Pradesh on 21 November, 2023
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 12137 of 2023
(BHEEM JATAV Vs THE STATE OF MADHYA PRADESH)
Dated : 21-11-2023
Shri Abhishek Chaubey, Advocate for the appellant.
Shri Lokendra Shrivastava, Panel Lawyer, for respondent/State.
Heard on the question of admission.
Being arguable, this appeal is admitted for final hearing.
Also heard on IA No.18962/2023, first application under Section 389(1)
Cr.P.C. moved on behalf of the appellant seeking suspension of sentence and
grant of bail.
Appellant stands convicted under Section 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter would be referred as to the
`Act of 1985) and sentenced to undergo Two years' and Six months RI with
fine of Rs.25,000/- with default stipulations vide judgment of conviction and
sentence dated 05.09.2023 passed by Special Judge, N.D.P.S Act, Sheopur
(M.P.) in SC NDPS 03/2020.
Learned counsel for the appellant referring to Para 19 of judgment of
Supreme Court in the case of State of Rajasthan Vs. Parmanand, (2014) 5
SCC 345, Para 4 of judgment in the case of Dayalu Kashyap Vs. State of
Chhattisgarh, (2022) 12 SCC 398 and Ranjan Kumar Chaddha Vs. State
of Himachal Pradesh, (2023) SCC Online SC 1262, submits that giving
third option to the accused to get himself searched from Investigation officer,
vitiates recovery of contraband. Learned counsel further referring to the
statement of Investigation Officer Gaurav Sharma (PW7) and Memo Ex.P/10
submits that the Investigation Officer has given third option of search which
was not contemplated in Sub Section (1) of Section 50 of the Act of 1985.
Therefore, the recovery stands vitiated in the matter.
Learned Counsel for appellant further contended that the impugned
judgment passed by learned Trial Court is based on assumption, conjecture and
surmises. The learned Trial Court has committed an error in convicting and
sentencing the present appellant without appreciating the prosecution evidence
properly. There are material contractions and omissions in the evidence of
witnesses. The appellant was on bail during trial and he did not misuse the
liberty so granted to him. There is no likelihood of hearing of appeal in near
future. On these grounds, learned Counsel prays that execution of remaining jail
sentence of appellant may be suspended and he may be enlarged on bail.
Per contra, learned Counsel for respondent State opposed the
application and prayed for its rejection.
Upon hearing learned Counsel for the parties but without commenting
upon rival contentions touching merits of the case, this Court is of the view that
application deserves to be allowed. It is, accordingly directed that execution of
remaining jail sentence of appellant shall remain suspended during pendency of
this appeal and he shall be enlarged on bail subject to furnishing personal bond
in the sum of Rs.1,00,000/- (Rupees One lac Only) with two solvent
sureties of Rs.50,000/- each to the satisfaction of Trial Court and also subject
to deposit of the fine amount (if not already deposited) for his appearance
before the Registry of this Court on 22.12.2023 and on further dates as may be
directed by the Registry in that regard.
Accordingly, I.A. No.18962/2023 stands allowed and disposed of.
List the matter for final hearing in due course.
Certified copy as per rules
(SANJEEV S KALGAONKAR)
JUDGE
Rks
