Madhya Pradesh High Court
Kalyan Mochi vs The State Of Madhya Pradesh on 21 February, 2024
Author: Sujoy Paul
Bench: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 11345 of 2022
(KALYAN MOCHI AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 21-02-2024
Shri R. S. Maindiretta - Advocate for appellant no.1 Kalyani Mochi
and No.2 Hema Bai.
Shri S. K. Kashyap - Government Advocate for the respondent-State.
Heard on I.A. No.4058 of 2024, application under Section 389(1) of the
Cr.P.C for suspension of sentence and grant of bail to appellants No. 1 & 2
aris ing out of judgment dated 03.09.2022 delivered in Special Case
No.NDPS/04/2019 passed by Special Judge (NDPS), District Sehore (MP).
The aforesaid appellants have been convicted under Sections 8(C) r/w
20(B)(ii)(c) of the N.D.P.S. Act and sentenced to undergo R.I. for 15 years
with fine of Rs.1,00,000/- each, witlt stipulation.
At the outset, learned counsel for the appellants submits that this Court
was kind enough in suspending the jail sentence of co-accused Shyam Singh
and Smt. Labu Bai on 08/02/2024 in CRA No.9706 of 2022. The present
appellants are similarly situated qua. Therefore, the present appellants may also
given the benefit of suspension of sentence.
Learned Government Advocate opposed the prayer but did not dispute
the factum of parity.
This Court while suspending the jail sentence of co-accused Shyam
Singh and Smt. Labu Bai, recorded as under :-
"It is common ground taken by learned counsel for these
appellants that both the appellants have no criminal
record. Appellant - Shyam Singh is in custody since
23.03.2019, whereas appellant - Labu Bai is in custody
from the date of judgment. By taking this Court to the
prosecution story, it is submitted that on 22.03.2019, the
appellants were allegedly in a vehicle, which was seized
and objectionable substance ganja was allegedly
recovered from the vehicle. The bone of contention of
learned counsel for the appellants is that the seizure
dated 22.03.2019 by police shows that the sampling was
made and samples were marked as A-1 and A-2.
Thereafter, pursuant to an application filed under Section
52-A of NDPS Act before the Magistrate, Magistrate
allowed the application and sampling before him also
had taken place, wherein samples were marked as Article
A-3 and A-4 through Exhibit P-65. The FSL report
(Exhibit P-69) shows that Article A-1, which was seized
by police and not a sample taken before the Magistrate
became subject matter of examination. It is common
ground that this procedure is unknown to law and runs
contrary to Section 52-A of the NDPS Act and resent
order of Supreme Court in the case of Simarnjit Singh
vs. State of Punjab reported in 2023 LiveLaw (SC)
570. Heavy reliance is placed on para 8 of this order,
which reads as under:
"In paragraphs 15 to 17 of the decision of this Court in
Mohanlal's case, it was held thus:
"15. It is manifest from Section 52-A(2)include (supra)
that upon seizure of the contraband the same has to be
forwarded either to the officer-in-charge of the nearest
police station or to the officer empowered under Section
53 who shall prepare an inventory as stipulated in the
said provision and make an application to the Magistrate
for purposes of (a) certifying the correctness of the
inventory, (b) certifying photographs of such drugs or
substances taken before the Magistrate as true, and (c)
to draw representative samples in the presence of the
Magistrate and certifying the correctness of the list of
samples so drawn.
16. Sub-section (3) of Section 52-A requires that the
Magistrate shall as soon as may be allow the application.
This implies that no sooner the seizure is effected and
the contraband forwarded to the officer-in-charge of the
police station or the officer empowered, the officer
concerned is in law duty-bound to approach the
Magistrate for the purposes mentioned above including
grant of permission to draw representative samples in his
presence, which samples will then be enlisted and the
correctness of the list of samples so drawn certified by
the Magistrate. In other words, the process of drawing
of samples has to be in the presence and under the
supervision of the Magistrate and the entire exercise has
to be certified by him to be correct.
17. The question of drawing of samples at the time of
seizure which, more often than not, takes place in the
absence of the Magistrate does not in the above scheme
of things arise. This is so especially when according to
Section 52-A(4) of the Act, samples drawn and certified
by the Magistrate in compliance with subsections (2) and
(3) of Section 52-A above constitute primary evidence
for the purpose of the trial. Suffice it to say that there is
no provision in the Act that mandates taking of samples
at the time of seizure. That is perhaps why none of the
States claim to be taking samples at the time of seizure."
Per contra, Shri Anubhav Jain, learned Government
Advocate opposed the prayer, but was unable to dispute
aforesaid factual ground taken by counsel for the
appellants. In other words, it could not be disputed that
examination of FSL is relating to A-1, a sample drawn
by the police and not sample drawn before the
Magistrate.
In this view of the matter and without expressing any
conclusive opinion on the merits of the case, we deem it
proper to suspend the remaining jail sentence of these
appellants.
Accordingly, I.A. Nos.788/2023 and 3601/2023 are
allowed."
Considering the factual backdrop and the principle of parity, without
conclusive opinion on the merits of the case, we deem it proper to suspend the
remaining jail sentence of these appellants.
Accordingly, I.A.No.4058 of 2024 is allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of these appellants is hereby suspended and it is directed
that the appellants No. 1 & 2 namely Kalyan Mochi and Hema Bai be
released on bail on their furnishing a personal bond for a sum of Rs.2,00,000/-
(Rupees Two Lakhs only) each with one solvent surety each of the like
amount to the satisfaction of the trial Court with a further direction to appear
before the trial Court, District Sehore on 18.03.2024 and also on such
other dates as may be fixed by the trial Court in this regard during the pendency
of this appeal.
Certified copy as per rules.
(SUJOY PAUL) (VIVEK JAIN)
JUDGE JUDGE
manju
