Madhya Pradesh High Court
Mukesh Singh Rajpoot vs State Of M.P. on 28 February, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 6725 of 2023
(MUKESH SINGH RAJPOOT Vs STATE OF M.P.)
Dated : 28-02-2024
Shri Sandeep Kumar Jain - Advocate for appellant in Cr.A. No.3194 of
2023.
Shri Jafar Khan - Advocate for appellants in Cr.A. No. 532 of 2023.
Shri Manoj Tiwari - Advocate for the appellant in Cr.A. No. 6725 of
2023.
Ms. Shikha Baghel - Panel Lawyer for respondents-State.
Record of the Court below is received.
Heard on I.A. No.18432/2023 on behalf of appellant - Bhupendra Sahu,
I.A. No.16987/2023 on behalf of appellant Lucky @ Lakshami Prasad Sinha,
I.A. No.27666/2023 on behalf of Mukesh Singh Rajpoot, have been filed for
suspension of sentence and grant of bail.
The appellants have been convicted for the offences punishable under
Section 8 r/w 20 (kha)(ii)(C) of NDPS Act and have been sentenced to undergo
R.I. for 10 years with fine of Rs.1,00,000/- with default stipulation.
Shri Sandeep Kumar Jain, learned counsel for the appellant Bhupendra
Sahu submits that in the present case, according to prosecution, two bags of
contraband were seized from 1 Scorpio Car in which, 15.110 kg ganja in 1 bag
and 15.080 kg ganja was there in the other bag. As per the prosecution, another
car i.e. Desire Car was also searched and in the same, two bags of containing
ganja weighing 23.14 kg and 22.14 kg were found.
Shri Sandeep Kumar Jain, learned counsel for the appellant contends that
it is evident from paragraph 10 of the testimony of Munnalal Dhurvey (PW-1)
that the contraband of all 4 bags were mixed together and thereafter, the sample
was taken out and this course was not permissible in view of the law laid by the
Apex Court in the case of Union Of India vs. Mohandlal (CRA
No.656/2012). Learned counsel for the appellant further submits that the said
judgment has been referred by this Court in the case of Prem Shankar
Ahirwar vs. The State of M.P. ( M.Cr.C. No.40896/2023). Learned counsel
for the appellant also contends that no signature on the seizure memo of the
present appellant were obtained, therefore, on this ground also the conviction is
unsustainable and in support of said contention reliance is placed on the
decision of Apex Court in the case of Vijay Pandey vs. State of U.P. [2019
(4) MPLC 79 (SC)] and also on the decision of Allahabad High Court in the
case of Kamlesh Rai vs. State of U.P. (2001 CriLJ 1410). The counsel also
contends that the accused is apprised of his right to be searched by Magistrate,
merely saying that the accused agreed would imply that the accused wanted to
be searched by Magistrate or Gazette Officer, in the present case, the said
requirement has also not been fulfilled. The counsel has lastly placed reliance on
the decision of Apex Court in the case of Mangilal vs. The State of M.P.
(2023 LiveLaw (SC) 549) while alleging non compliance of Section 52 (A) of
NDPS Act which provides the physical presence of the Magistrate followed by
an order facilitating his approval either for certifying an inventory or for a
photograph taken apart from list of samples drawn, is mandatory.
Shri Jafar Khan, learned counsel for the appellant Lucky @ Lakshami
Prasad Sinha submits that in the present case, as per the prosecution, an
information was given by the informant at around 10:00 AM were as, the seizure
has been made at 4:30 PM. It is contended by the counsel that in the present
case, there is no compliance of Section 57 of the NDPS Act. It is also
contended by the counsel that no intimation was given to the Superior Officials
and accordingly, the entire conviction is unsustainable.
Shri Manoj Tiwari, learned counsel for the appellant Mukesh Singh
Rajpoot has supported the submissions advanced by Shri Sandeep Kumar Jain,
Advocate and Shri Jafar Khan, Advocate in connected cases.
Per contra, learned counsel for the respondent opposed the prayer and
submitted that the trial Court has considered all aspects of the matter and after
considering the fact that there was compliance of relevant provisions of NDPS
Act has convicted the present appellants. It is contended by the respondent that
taking into consideration the gravity of offence, the conviction does not require
any interference. The trial Court in paragraph 100 of the judgement onwards
considered the factum of compliance of the various provisions. Thus, it is
contended by the counsel that the applications filed by the appellants deserve to
be dismissed.
Heard the rival submissions and perused the case diary.
In the present case, the testimony of PW-1 is important. In paragraphs 11
and 13 of testimony, PW-1 has stated that from each bag the samples were
drawn. It is further evident from perusal of paragraphs 100 to 133 of the
judgment that the Court considered the compliance of the statutory provisions.
The Court also considered the aspect of Section 52 (A) of NDPS Act in
paragraph 128 of the judgment and as regards Section 50 of NDPS Act also the
findings have been arrived at by the trial Court in paragraph 115 of the
judgment.
Therefore, in the present case, prima facie the judgement reflects
compliance of the relevant statutory provisions of the NDPS Act. Accordingly,
this Court is not inclined to suspend the jail sentence of the appellants and the
applications stand rejected.
The appeal has already been admitted for final hearing, so it be listed for
final hearing in due course.
C.C. as per rules.
(MANINDER S. BHATTI)
JUDGE
mn
