Madhya Pradesh High Court
Raees Mohd. vs The State Of Madhya Pradesh on 19 February, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 7687 of 2021
(RAEES MOHD. AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 19-02-2024
Dr. Khuzema Kapadia - Advocate for appellant.
Shri Ajay Raj Gupta - PP for State.
Heard on IA No.1811/2024 which is second application (wrongly
mentioned as first application) under section 389 Cr.P.C. for suspension of
sentence of jail sentence. The first application was dismissed as withdrawn.
2. The appellant has been convicted u/S.8(c)/18(B) of Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter referred as the Act) and
sentenced to undergo RI for 10 years with fine of Rs.1,00,000/- with default
stipulation.
3. As per prosecution story it is alleged that on 2.9.2012 on the basis of
source information the police intercepted vehicle driven by co accused Kallu
Khan and on search being made three kg opium was seized from open truck.
Appellant along with other co-accused was arrested and subsequently charge
sheet was filed. Appellant abjured the guilt. After considering the evidence
adduced by prosecution special court convicted the appellant as aforesaid.
4 . Counsel for the appellant submits that the prosecution has failed to
comply with the provisions of section 52A(2)(c) of the Act. He has drawn
attention of this Court to Ex.P./15 and also the testimony of PW.6 and PW.7 to
establish the fact that the samples were taken at the spot and not before the
Magistrate. Thus the provisions of Sec.52A(2)(c) of the Act has not been
complied with. Since the provisions of Section section 52A(2)(c) of the Act
have not been complied with and, therefore, the benefit of doubt has to be
granted to the appellant. In support of his submission, he has placed reliance on
the judgment passed by the Apex Court in the case of Union of India vs.
Mohanlal & Anr. (2016) 3 SCC 379 , which has been followed by the Apex
Court in the case of Simranjeet Singh Vs. State of Punjab reported in 2023
Live Law SC 570. It is further argued that following the aforesaid judgments
the Division Bench has also suspended the jail sentence in Criminal Appeal
No.562/2023 (Devkishan vs. State of MP).
5. Counsel for the State supports the order of conviction and sentence.
6 . After hearing learned counsel for the parties and taking into
consideration that the finding of the trial Court regarding compliance of
provision of Section 52-A of the Act is contrary to Ex.P/15. Thus, prima facie
samples have been taken by the investigating officer itself on the spot which is
contrary to the aforesaid provisions of section 52-A of the Act and the
judgment passed by the Apex Court.
7. Considering the aforesaid, the IA is allowed. The substantive jail
sentence of the appellant Raees Mohammad is suspended upon depositing the
fine amount, if not already deposited, and on furnishing bail bond of
Rs.1,00,000/- with one surety in the like amount to the satisfaction of the trial
court for appearance before the Registry of this Court on 02.04.2024 and on
the subsequent dates as may be fixed in this behalf by the Registry.
C.c. as per rules.
(VIJAY KUMAR SHUKLA)
JUDGE
VM
