Madhya Pradesh High Court
Kamlesh vs The State Of Madhya Pradesh on 21 February, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 15022 of 2023
(KAMLESH Vs THE STATE OF MADHYA PRADESH)
Dated : 21-02-2024
Shri Anshu Gupta- learned counsel for the appellant.
Shri Atul Sharma - learned Panel Lawyer for the respondent-State.
Heard on the question of admission.
Being arguable, the appeal is admitted for final hearing.
Also heard on IA No 22127/2023, first application under Section 389(1)
Cr.P.C. moved on behalf of appellant Kamlesh seeking suspension of
sentence and grant of bail.
Appellant stood convicted under Section 8/21 of the NDPS Act and
sentenced to suffer three years RI with fine of Rs. 10,000/- with default
stipulations vide judgment of conviction and sentence dated 28/11/2023 passed
by Special Judge (NDPS Act), Guna (M.P.) in SC NDPS No. 10/2019.
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 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 Para 3 of
statement of Sub-Inspector Diksha Sharma (PW2), para 4 of statement of ASI
Narendra Singh Raghuvanshi (PW3) & Ex.P13, submits that there is non-
compliance with the provision of Section 50 of NDPS Act. The Investigation
Officer has not complied with the mandate of Section 50 of NDPS Act by
informing the accused with his right to be searched with the Executive
Magistrate, rather a third option was given with regard to search by the
Investigation Officer herself. Further, there is non- compliance with mandatory
provision of Section 52 of NDPS Act. Therefore, the recovery stands vitiated in
the matter.
Learned Counsel for the 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, regard being had to the old
age of the applicant, 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 Court for compliance with following conditions:-
(1). The appellant shall deposit the amount of fine (if not deposited)
forthwith;
(2). He shall appear before the Trial Court on 04.04.2024 and on such
further dates as may be directed by the Trial Court;
(3). The appellant shall ensure hearing of the appeal on the date fixed
for such hearing and shall also ensure proper legal representation on his/her/their
behalf, on the date notified for hearing.
In case of breach of any of the aforementioned conditions, this order
granting suspension of sentence shall become ineffective.
The Trial Court shall be authorized to grant exemption from attendance
to the appellant on any date, on sufficient cause being shown [Chapter XIII
Rule 42 Sub-Rule 2 of the M.P. High Court Rules, 2008].
Where the appellant does not appear on the date of his appearance
before the Trial Court and no sufficient cause for non-appearance is shown, the
Trial Court shall be authorized to issue non-bailable/bailable warrants to secure
his attendance under intimation to the Registry of High Court. The Trial Court
shall also proceed under Section 446 of CrPC against such appellant and his
surety without any reference to this Court and without any impediment of the
order granting bail. [Chapter XIII Rule 42 Sub-Rule 3 of M.P. High Court
Rules, 2008].
On arrest/surrender in compliance with the warrant, the appellant shall be
forwarded in custody to undergo sentence of imprisonment under intimation to
the Registry of this Court.
Accordingly, I.A. No.22127/2023 stands allowed and disposed of.
List for final hearing in due course.
Certified copy as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
MKB
