Madhya Pradesh High Court
Nizamuddin @ Nizam Kha vs The State Of Madhya Pradesh on 29 April, 2025
1 CRA-4324-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 4324 of 2024
(NIZAMUDDIN @ NIZAM KHA Vs THE STATE OF MADHYA PRADESH )
Dated : 29-04-2025
Shri Abhay Saraswat, learned counsel for the appellant.
Shri Hemant Sharma, learned Public Prosecutor for the
respondent/State.
Heard on I.A.No.8882/2024, second application under Section 430 of
Bharatiya Nagarik Suraksha Sanhita, 2023 (equivalent to Section 389(1) of
Cr.P.C.) for suspension of remaining jail sentence and grant of bail on behalf
of the appellant- Nizamuddin @ Nizam Kha S/o Gafur Kha Mansoori. His
first application was dismissed as withdrawn vide order dated 15.04.2024.
The appellant stands convicted under Section 8/15 (C) read with
Section 29 of NDPS Act and sentenced to undergo 10 years RI with fine of
Rs.1,00,000/- with usual default stipulation.
Learned counsel for the appellant while taking exception to this
impugned judgment submits that appellant is innocent and he has been
falsely implicated in this matter on the basis of memorandum recorded under
Section 27 of the Evidence Act of co-accused Ishwar. He further submits that
58 Kg of Dodachura was seized from the well in abandoned condition which
allegedly belongs to Ishwar Singh. Trial Court has not appreciated the
evidence in its right perspective. There are material contradictions and
omissions in the statement of the witnesses. Impugned judgment suffers from
surmises and conjectures. It is further submitted that the appellant was in
2 CRA-4324-2024
custody from 15.10.2020 to 09.04.2021 and thereafter from the date of
judgment i.e. 12.03.2024. The appeal being of the year 2024 is not likely to
be heard finally in near future. There is a strong case in favour of the
appellant. Hence, under such circumstances prayer is made for suspension of
jail sentence and grant of bail.
Per contra, learned Public Prosecutor, appearing on behalf of the
respondent/State, while supporting the judgment impugned submits that no
exception can be taken in the matter of suspension of sentence and grant of
bail, regard being had to the nature and the gravity of offence found proved
against the present appellant. He fairly admits that there is no criminal
antecedents against the appellant he was implicated on the memorandum of
co-accused recorded under Section 27 of the Evidence Act wherein he
alleged that appellant has supplied Dodachura which was recovered from the
well in the abandoned condition.
Heard learned counsel for the parties and perused the record.
Considering the aforesaid factual backdrop, all the facts and
circumstances of the case coupled with the fact that possibility of final
hearing of this appeal in near future is bleak and period of incarceration,
without expressing any conclusive opinion on merits, I find it to be a fit case
to suspend the remaining custodial sentence of the appellant.
Accordingly, application is allowed. Subject to deposit of fine amount,
if not already deposited the remaining jail sentence during the pendency of
the appeal is hereby suspended and it is directed that appellant be released on
bail on his furnishing personal bond in sum of Rs.1,00,000/- (Rupees One
3 CRA-4324-2024
Lac Only) with one solvent surety in the like amount to the satisfaction of
learned trial Court for compliance with following conditions:-
(1) The appellant shall deposit the amount of fine (if not deposited)
forthwith;
(2) The appellant shall appear before the Trial Court on 17/06/2025
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 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 do 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 Cr.P.C. /
Section 491 of BNSS, 2023 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
4 CRA-4324-2024
intimation to the Registry of this Court.
Accordingly, the I.A. stands allowed and disposed off.
I.A.No.8881/2024 for urgent hearing also stands disposed off.
List for final hearing in due course.
(BINOD KUMAR DWIVEDI)
JUDGE
RJ
