Madhya Pradesh High Court
Dinesh @ Bullu Kushwaha vs The State Of Madhya Pradesh on 18 March, 2025
Author: Anuradha Shukla
Bench: Anuradha Shukla
1 CRA-7492-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 7492 of 2024
(DINESH @ BULLU KUSHWAHA Vs THE STATE OF MADHYA PRADESH )
Dated : 18-03-2025
Shri Prakhar Naveriya - Advocate for the appellant.
Ms. Shikha Singh Baghel - Panel lawyer for the State.
Heard on I.A No.20449/2024 , which is first application under Section
389 of Cr.P.C for suspension of sentence and grant of bail moved on behalf
of appellant.
The appellant has been convicted for the offences punishable under
Section 8(c) r/w 21(c) of NDPS Act and sentenced to undergo RI for 10
years with fine of Rs.1,00,000/-, with default stipulations, vide judgment of
conviction and order of sentence dated 24.05.2024 passed in SCNDPS
No.33/2022, by the learned Special Judge (NDPS Act) Singrauli, HQ,
Waidhan, District Singrauli.
This application has been argued on the ground that as per sample
memo (Ex.P/9) samples were drawn on 10.05.2022 at 21:20 PM while the
contraband was seized vide (Ex.P/11) at 22:30 PM on same night. It is
submitted that in the light of sampling proceeding done prior to seizure, the
entire proceeding is vitiated and for this reliance has been placed on para 15
of the judgment of Apex Court delivered in the case of Union of India vs.
Mohanlal and another (2016) 3 SCC 379. It has also been argued that wrong
crime number is mentioned in Ex.P/36 which is an information letter given to
the relative of appellant regarding his arrest. Further submission is that the
2 CRA-7492-2024
seizure witnesses examined in the prosecution did not support its case. Based
on these arguments, it is prayed to allow the application particularly in the
light of the fact that appellant has suffered almost three years of incarceration
in this case.
On the other hand, learned counsel for the State has opposed the
application on the ground that recently the Apex Court while deciding the
case of Bharat Aambale vs. State of Chattisgarh in CRA No.250/2025 has set
out certain guidelines in which it has been observed that mere non
compliance procedure under Section 52-A or the standing order/ rules
thereunder will not be fatal to the trial, unless there is discrepancy in the
physical evidence rendering the prosecution case doubtful. It is submitted
that the case if examined wholesomely would reveal that prosecution has
been able to prove its case beyond reasonable doubt.
Heard learned counsel for both the parties and perused the record.
From the perusal of record, it is evident that the two samples marked
as 'A1' and 'A2' were drawn by seizure officer on the spot and later the entire
quantity of contraband was placed before Naib Tehsildar for compliance of
provision of Section 52A and the samples drawn there were marked as 'A3'
and 'A4', but draft sent by Superintendent Singrauli to the Government
analyst, Bhopal marked as Ex.P/25 reveals that sample 'A1' alone was sent
for chemical analysis which was drawn by the seizure officer on the spot.
This reveals that the proceedings of Section 52A of NDPS Act was
pretentious and samples drawn by Naib Tehsildar was never sent for
chemical examination.
3 CRA-7492-2024
The judgment delivered in the case of Bharat Aambale vs. State of
Chattisgarh outlines that non-compliance of this provision may lead the
Court to draw adverse interference and unless the foundational facts are
established, the onus would still be on the prosecution to prove by cogent
evidence that such non-compliance does not affect its case against the
appellant. From the record it appears that there is no explanation for not
sending the samples drawn by the Executive Magistrate for chemical
analysis to the Government Analyst.
In the light of above terms of discussion, the application is allowed.
It is directed that subject to depositing the fine amount, if not already
deposited, and on furnishing a personal bond in a sum of Rs.50,000/-
(Rupees Fifty Thousand only) with one solvent surety in the like amount to
the satisfaction of the trial Court concerned, the custodial sentence of the
appellant shall remain suspended and she shall be released on bail for
securing his presence before the trial Court concerned on 30.06.2025 and on
such other dates as may be fixed in this regard during pendency of this
appeal.
Accordingly, the aforesaid I.A. stands allowed and disposed of.
List this case for final hearing in due course.
(ANURADHA SHUKLA)
JUDGE
DevS
