Mujji @ Mubarik Khan vs The State Of Madhya Pradesh
2024 Latest Caselaw 21134 MP

Madhya Pradesh High Court

Mujji @ Mubarik Khan vs The State Of Madhya Pradesh on 5 August, 2024

Author: Sanjeev S Kalgaonkar

Bench: Sanjeev S Kalgaonkar

                                                             1                             CRA-14527-2023
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT GWALIOR
                                                    CRA No. 14527 of 2023
                                        (MUJJI @ MUBARIK KHAN Vs THE STATE OF MADHYA PRADESH )



                          Dated : 05-08-2024
                                Shri Imran Khan- Advocate for the appellant.
                                Shri Bhanupratap Singh Chauhan- Public Prosecutor for
                          respondent/State.

Heard on question of admission.

Record of the trial Court has been received.

Appeal being arguable, is admitted for final hearing. Also heard on IA No.21992 of 2023, first application under Section 389(1) Cr.P.C. moved on behalf of appellant Mujji @ Mubarik Khan seeking suspension of jail sentence and grant of bail.

Appellant stands convicted under Section 8/21(b) of NDPS Act and sentenced to undergo four years' RI with fine of Rs.5,000/- with default stipulations vide judgment of conviction and sentence dated 02.11.2023 passed by Special Judge (NDPS), District Shivpuri (M.P.) in Special Sessions Trial No.27 of 2019.

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 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 referring to panchnama

2 CRA-14527-2023

Exhibit (P-6) and the statement of Dinesh Singh (PW-8) submits that the Investigation Officer has given third option of search which was not contemplated in sub-section (1) of Section 50 of the NDPS Act. Therefore, the recovery stands vitiated in the matter.

Learned Counsel for the appellant also contends that impugned judgment passed by learned Trial Court is based on assumption, conjectures and surmises. The learned Trial Court has committed an error in convicting and sentencing the present appellant without appreciating the prosecution evidence properly. Independent witnesses did not support the prosecution. There are material contractions and omissions in the evidence of witnesses. The appellant has already undergone 11 months' custody. Fine amount has

already been deposited by the appellant. There is no likelihood of early 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 opposes the application and prays 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.50,000/- (Rupees fifty thousand only) with one solvent surety in the like amount to the satisfaction of Trial

3 CRA-14527-2023 Court and also subject to deposit of the fine amount (if not already deposited) for his appearance before the Registry of this Court on 14.10.2024 and on further dates as may be directed by the Registry in that regard.

Accordingly, aforesaid IA stands allowed and disposed of. List the matter for final hearing in due course.

Certified copy as per rules.

(SANJEEV S KALGAONKAR) JUDGE

*AVI*