Madhya Pradesh High Court
Lala @ Santosh Nishad vs The State Of Madhya Pradesh on 12 July, 2023
Author: Anuradha Shukla
Bench: Anuradha Shukla
1 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 830 of 2023 (LALA @ SANTOSH NISHAD Vs THE STATE OF MADHYA PRADESH) Dated : 12-07-2023 Shri R. B. Gautam - Advocate for the appellant.
Ms. S. S. Baghel - Panel Lawyer for the State.
Record of the Court below is available.
Heard on the question of admission.
The appeal being arguable, is admitted for final hearing.
Also heard on I.A No.947/2023, which is first application under Section 389(1) of Cr.P.C for suspension of sentence and grant of bail, moved on behalf of the appellant.
The appellant has been convicted for an offence punishable under Section 8/20 of the NDPS Act and sentenced to undergo R.I. for 2 years with a fine of Rs.2,000/-, with default stipulations.
Learned counsel for the appellant submits that the appellant is innocent and has falsely been implicated in the matter. The learned trial Court has erred in not appreciating the fact that there are material omissions and contradictions in the versions of the prosecution witnesses. He further submits that the appellant is in jail and there is no likelihood of the hearing of appeal in near future. Hence, it is prayed that the application for suspension of sentence may be considered.
On the other hand, learned counsel for the State opposes the application and prays for its rejection.
Heard learned counsel for the parties and perused the judgment and record of the court below.
The appellant has been sentenced to two years RI with a fine of 2 Rs.2,000/- under section 8/20 of the NDPS Act for having three kilograms of "Ganja" in his possession. The prayer for suspension of sentence has been made on the ground that independent witnesses failed to support the prosecution case and the members of police party could not credibly prove the place from where the seizure was made.
For this, learned counsel for the appellant has drawn the attention of this court to the testimony of Umaraman Bagri (P.W.3), Vishnu Shankar Jaiswal (P.W.4) and Dinesh Kurosiya (P.W.5) but all the three have disclosed that a seizure was made at Khirahni Phatak, district Katni. Witness Umaraman Bagri has disclosed in the cross-examination that there was a Nishad School nearby the spot of seizure. Similarly, witness Vishnu Shankar Jaiswal has stated that the appellant was standing behind the Nishad School and this place was also behind his own house. He has further disclosed in para 15 that for reaching Nishad School, he had to take a left turn and to reach the spot he further went 200 meters in an inner lane. The third witness Dinesh Kurosiya too has disclosed that the spot of recovery was behind the Nishad School. Thus, finding no material contradiction about the place of recovery, the sentence pronounced by the learned Court cannot be suspended merely on that ground. Further, the defence of appellant was neither proved by him nor admitted by the prosecution.
Accordingly, finding no valid reason to suspend the sentence, the application under consideration is dismissed.
List for final hearing in due course.
(ANURADHA SHUKLA)
Digitally signed by PRASHANT
SHRIVASTAVA
JUDGE
ps Date: 2023.07.13 13:18:43 +05'30'
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