Madhya Pradesh High Court
Mukesh Soni vs The State Of Madhya Pradesh on 6 February, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 11294 of 2023
(MUKESH SONI Vs THE STATE OF MADHYA PRADESH)
Dated : 06-02-2024
Shri Siddharth Datt, learned counsel for the Petitioner .
MS Shanti Tiwari P.L. appeared for Respondent.
Heard on I.A.No.22504/2023, an application under Section 389(1) of
the Cr.P.C. for suspension of sentence and grant of bail to the appellant.
The appellant has been convicted under Section 8(c) and 20 (b) of NDPS
Act and has been sentenced to undergo R.I. for 8 years with fine of Rs.10,000/-
, with default stipulation.
As per prosecution story, there was a seizure of 15 Kg of contraband
(ganja). It is contended by the counsel that there is flagrant violation of Section
50 and Section 52 of NDPS Act as the notice in terms of Section 50 of NDPS
Act is required to be given individually and service of a common notice is not
permissible within the ambit of 50 of the NDPS Act. In support of the said
contention, reliance has been placed in the case of State of Rajasthan Vs
Permanand and Anr. reported in (2014) 5 SCC 345. It is also contended by
the counsel that the process of drawing sample in terms of Section 52 of the
NDPS Act has to be carried out in presence of Magistrate which in the present
case has not been done and thus has placed reliance on the aforesaid case. It is
contended by the counsel that as statutory provisions have been grossly
violated which have caused serious prejudice to the right of the applicant.
I t is further contended by the counsel that the appellant has suffered
incarceration of two years as against the sentence of 8 years imposed by the
trial Court. It is also contended by the counsel that there is no criminal past and
no case under the provisions of NDPS Act was ever registered against the
appellant, therefore, the appellant deserves to be enlarged on bail.
On the other hand, learned Government Advocate has opposed the said
bail application while submitting inter alia that the provisions of Section 52 of
NDPS Act are treated to be directory and not mandatory. It is also contended
by the counsel that the said aspect has has been taken note of by the trial Court
in paragraph 63 of the judgment and as per the law laid down by the Apex
Court in the Case of State of Punjab Vs. Balbir Singh reported in AIR 1993
SC 1872 it has been held that the provisions of statue creating public duties are
generally speaking directory, therefore, the provisions of Section 52 of NDPS
Act cannot be treated as mandatory, thus, the application for suspension of
sentence deserves to be dismissed.
Considering the submissions advanced on behalf of the parties, it is
evident from perusal of Exhibit P/5 that a common notice in terms of Section 50
of NDPS Act was given to all the accused. It is undisputed that no individual
notice was issued to the present appellant in terms of Section 50 of NDPS Act,
therefore, this Court is of the considered view that in the light of the law laid
down by the Apex Court in the case of State of Rajasthan (Supra) prima facie
there was violation of the provisions of Section 50 of NDPS Act. It is also
undisputed that the process of collecting samples in terms of Section 52 of
NDPS Act has not been conducted in the presence of Magistrate, therefore,
taking into consideration the totality of the circumstances and also the fact that
the appellant has suffered two years of incarceration as of now and also the fact
that there are n o past antecedents of the appellant, I.A.No.22504/2023 is
allowed.
The execution of jail sentence of appellant Mukesh Soni is hereby
suspended subject to depositing of the fine amount, (if not already
deposited). It is directed that the appellant be released on bail on his
furnishing a personal bond to a sum of Rs.50,000/- (Rupees Fifty thousand
only) with one solvent surety of the like amount to the satisfaction of the trial
court with a further direction to appear before the trial Court on 29.04.2024
and also on such other dates, as may be fixed by that Court in this regard
during the pendency of this appeal.
List the case for final hearing in due course as per listing policy.
Certified copy as per rules.
(MANINDER S. BHATTI)
JUDGE
Astha
