Madhya Pradesh High Court
Radhavallabh Mishra vs The State Of Madhya Pradesh on 28 February, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 30 of 2024
(RADHAVALLABH MISHRA Vs THE STATE OF MADHYA PRADESH)
Dated : 28-02-2024
Shri Hardayesh Kumar Shukla - learned counsel for appellant.
Shri Kuldeep Singh- learned Public Prosecutor for the respondent- State.
Heard on the question of admission.
Being arguable, the appeal is admitted for final hearing.
Also heard on IA No.18/2024, first application under Section 389(1)
Cr.P.C. moved on behalf of the appellant Radhavalabh Mishra seeking
suspension of sentence and grant of bail.
Appellant stood convicted under Section 8 read with Section 20(kha)(ii)
(c) and Section 29 of the NDPS Act and sentenced to undergo five years' RI
with fine of Rs.5000/- with default stipulations vide judgment of conviction and
sentence dated 21/12/2023 passed by Special Judge (NDPS Act), District
Shivpuri (M.P.) in Special Sessions Trial No. 23/2019.
Learned Counsel for appellant submits that appellant has falsely been
implicated in this case merely on the basis of statement of co-accused in police
custody. Investigation Officer- Deepti Tomar (P.W.8) and police witnesses,
namely, Constable -Bhole Singh (P.W.1), Constable -Uday Singh (P.W.3),
Constable -Udal Singh (P.W.4) and Constable-Ram Kumar Singh (P.W.6) have
stated that co-accused Devendra @ Babloo and Feran were intercepted and
they informed that Radhavalabh Mishra has fled away. None of the
aforementioned witnesses has identified Radhavalabh as the person who fled
away from spot of initial recovery. Learned counsel further contends that
accused Feran, in his statement recorded under Section 27 of the Evidence Act,
informed that he has brought contraband Ganja from Radhavalabh. Thereafter,
further recovery was made from Jai Mahakal Bhang Theka Dukan near the
house of Babloo Kushwah. On the basis of this recovery, appellant has been
convicted. Appellant was not present at the time of alleged recovery from the
Jai Mahakal Bhang Theka Dukan. Therefore, no conscious possession of
contraband Ganja is attributed to the appellant.
Learned counsel relying on the judgment of Apex Court in the case of
Tofan Singh Vs. State of Tamil Nadu reported in (2021) 4 SCC 1, submits
that statement of co-accused in police custody is not admissible against the
appellant. Appellant was arrested on 24/09/2019 after four days of alleged
recovery of contraband Ganja. Learned Trial Court committed an error in
convicting the appellant merely on the basis of statement of co-accused in
police custody. No incriminating article has been recovered at the instance of
appellant.
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. There are material contradictions and omissions in the evidence of
witnesses.Appellant has already undergone custody of more than two months.
No criminal antecedent is reported against the appellant. The appellant was on
bail during trial and he did not misuse the liberty so granted to him.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 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 01.04.2024 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 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 authroised 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 authorised 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.18/2024 stands allowed and disposed of.
List for final hearing in due course.
Certified copy as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
Prachi
