Sonu Kushwah vs The State Of Madhya Pradesh
2025 Latest Caselaw 530 MP

Madhya Pradesh High Court

Sonu Kushwah vs The State Of Madhya Pradesh on 8 May, 2025

                                                                 1                           CRA-10506-2023
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                      AT GWALIOR
                                                     CRA No. 10506 of 2023
                                            (SONU KUSHWAH Vs THE STATE OF MADHYA PRADESH )



                         Dated : 08-05-2025
                               Shri Jitendra Singh Kushwah - Advocate for the appellant.
                               Ms. Padam Shri Agrawal - Panel Lawyer for the State.

                               Heard on I.A.No.2137 of 2024 , first application under Section 389 of
                         Cr.P.C. for suspension of jail sentence and grant of bail to appellant - Sonu
                         Kushwah.

                         2.    This Criminal Appeal assails the judgment dated 31.07.2023 passed in
                         Special Sessions Trial No.15/2019 by the Special Judge (NDPS Act), Distt.
                         Shivpuri, whereby the appellant has been convicted under Sections 8 read with
                         Section 18(b) of the NPDS Act and sentenced to undergo 10 years RI with fine of
                         Rs. one lac with default stipulation.
                         3.    Learned counsel for the appellant submits that trial Court has wrongly
                         convicted the appellant without proper appreciation of facts of the case as well as
                         evidence on record. During trial, the appellant has suffered jail sentence of 3
                         months and 20 days and thereafter from the date of judgment i.e. 31.07.2023 he is
                         in custody, thus he has already suffered incarceration of around two years and one

                         month. It is further submitted that in this case compliance of Section 50 of the
                         NDPS Act has not been done by the raiding party and third option has been given
                         by them to present appellant to get search conducted by the seizing officer himself
                         except the search by the Magistrate or Gazetted Officer. Learned counsel has
                         heavily relied upon the judgment of the Apex Court in the case of State of
                         Rajasthan vs. Parmanand & Anr., (2014) 5 SCC 345 . The appellant is ready and


Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 5/9/2025
6:47:10 PM
                                                               2                              CRA-10506-2023
                         willing to comply with any condition which may be imposed by the Court. There
                         is no likelihood of hearing of the instant appeal in near future. Hence, prayed to
                         suspend the jail sentence and grant of bail to the appellant.
                         4.    Learned counsel for the respondent/State opposed the application while

referring to Section 32-A and 37 of the NDPS Act and relied upon the judgment of the Apex Court in the case of Dadu @ Tulsidas vs. State of Maharashtra, (2000) 8 SCC 437 submitting that convict under NDPS Act will not be entitled to ask for suspension of sentence as a matter of right. A sentence awarded under the NDPS Act can be suspended by the appellate Court only and strictly subject to the conditions spelt out under Section 37 of the NDPS Act. He also relied on para 27 of the aforesaid judgment which is reproduced as infra:-

"27. Holding Section 32-A as void insofar as it takes away the right of the courts to suspend the sentence awarded to a convict under the Act, would neither entitle such convicts to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the courts of their legal obligations to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act. Section 37 of the Act provides:

"37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973--

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless--

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail."

3 CRA-10506-2023 It is further submitted that present appellant has been convicted for imprisonment of 10 years and fine which is the minimum sentence for an offence of possession of commercial quantity of contraband punishable under Section 8 read with Section 18(b) of the NPDS Act and prays for rejection of the application.

5. Heard learned counsel for the parties and perused the record.

6. Though in the judgment of Hon'ble Apex Court in the case of Parmamand (supra) the conviction of respondent/accused has been set aside inter alia on the ground that third option has been given to the accused person which vitiates the search, but having considered the dictum in the case of Dadu @ Tulsidas (supra) para 27 as well as the provisions of section 32-A and 37 of the NDPS Act and also the language used in the notice given under Section 50 of the NDPS Act to present appellant, the material on record, the attending facts and circumstances of the case and finding no satisfaction under Section 37 of the NDPS Act, in the considered opinion of this Court, it is not a fit case for grant of suspension of sentence. Accordingly, I.A.No. 2137/2024 is dismissed.

(RAJENDRA KUMAR VANI) JUDGE

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