Madhya Pradesh High Court
Mahendra Singh Thakur @ Pintu vs The State Of Madhya Pradesh on 22 March, 2022
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
The High Court Of Madhya Pradesh
CRA No.8306 of 2021
(MAHENDRA SINGH THAKUR @ PINTU VS. THE STATE OF MADHYA PRADESH)
Jabalpur, Dated: 22.03.2022
Shri Sandeep Kumar Jain, learned counsel for the appellant-
Mahendra Singh Thakur @ Pintu.
Shri Chandrapal Singh Parmar, learned Government
Advocate for the respondent/State.
Record of trial Court has been received.
Appeal seems to be arguable. Hence, admitted for final hearing.
Also heard on I.A. No.24006/2021, an application under Section 389(1) of the Code of Criminal Procedure for suspension of jail sentence and grant of bail pending the appeal.
Appellant Mahendra stands convicted for commission of offence under Section 8 read with Section 20(b)(ii-b) of Narcotic Drugs and Psychotropic Substances Act, 1985 and has been sentenced to undergo 3 years R.I. with fine of Rs.15,000/- with default stipulation.
Learned counsel for the appellant-Mahendra has submitted that the provision of Section 50 of the Narcotic Drugs and 2 Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) were not followed by the police at the time of search. Learned counsel has placed reliance on the judgments of Pandav Sarkar vs. State of U.P., 2012 CRI.L.J. 1855, Dilip and another vs. State of M.P., (2007) 1 SCC (Cri) 377 and the judgment of this Court delivered in Criminal Appeal No.1239 of 2012 [Prabhu Yadav vs. State of M.P.] by a coordinate bench of this Court.
Learned counsel has invited my attention towards Ex.P/8 and has submitted that statutory requirement contained in Section 50 of the Act have not been complied with. Learned counsel further submitted that Sub Inspector Bharat Singh (PW-7) in para 22 of his evidence has admitted that in all the articles of sample, it is not mentioned as to which place they were collected, taken out and prepared. Time of sealing of articles is also not mentioned on them. In the pretext of above arguments, he has submitted that appellant Mahendra has fair chances to succeed in the appeal. Therefore, it has been prayed that jail sentence be suspended and appellant be released on bail.
On the other hand, learned counsel for the State has opposed the grant of bail to the appellant and has submitted that there is overwhelming evidence against the appellant that contraband 'Ganja' was seized from his possession. Learned trial Court after appreciating the evidence has rightly held the appellant guilty for the aforesaid offence. Therefore, he has prayed for dismissal of the application for suspension of jail sentence and grant of bail 3 pending appeal.
On a perusal of the prosecution story and the impugned judgment, it is revealed that on 05.12.2015, S.I. Bharat Singh of P.S. Gohalpur received a secret information that three persons possessing Ganja are waiting for the customers. At this he prepared panchnama about the receipt of information from the informant and entered the same in general diary. He forwarded the information so received to CSP Gohalpur. Thereafter, he along with police force, independent witnesses and one electronic weighing machine, reached on the spot. There he found three persons standing with bags in their hand. They were interrogated and interrogation panchnama was prepared. They were made conversant with the information given by the informant. They were further informed that if they wanted to give their search to police they can give the same but if they wish they can give their search before the Magistrate or some Senior Officers. Accused persons gave their oral consent for search to him. In this regard, panchnama Ex.P/8 was prepared. On search of the bag found in possession of accused Mahendra, 5 kg contraband Ganja was found kept in a polyethylene. Search memo Ex.P/10 and seizure memo Ex.P/13 were prepared.
In this case, 5 kg Ganja has been seized on search of a bag which was being carried by accused Mahendra. As per case laws relied upon by learned counsel for the appellant Mahendra are concerned, they have no application in the facts of the present case 4 as Section 50 is applicable only in the case of search of the person. In the case of State of H.P. Vs. Pawan Kumar-(2005) 4 SCC 350, it has been held that search of a bag, briefcase or any such article or container, etc. which is being carried by accused is not a search of the person. Hence, Section 50 would not apply in such a case. Same view was reiterated in the cases of Rajesh Dhiman and others vs. State of Himachal Pradesh-(2020) 10 SCC 740 and Varinder Kumar Vs. State of H.P.- (2020) 3 SCC 321.
Therefore, case law of Prabhu Yadav vs. State of M.P. and Dilip and another vs. State of M.P. have no application in the facts of the present case.
In the case of State (NCT of Delhi) Narcotics Control Bureau vs. Lokesh Chadha-(2021) 5 SCC 724 in paras 10 & 11 Hon'ble Apex Court held as under :
10. At this stage, we will refer to the decision of a two-Judge Bench of this Court in Preet Pal Singh v State of Uttar Pradesh where Justice Indira Banerjee, speaking for the Court, observed as follows:
"35. There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post-conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. However, in case of post- conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon 5 trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC."
11. The principles which must guide the grant of bail in a case under the NDPS Act have been reiterated in several decisions of this Court and we may refer to the decision in State of Kerala v Rajesh. The High Court unfortunately, in the present case, has not applied its mind to the governing provisions of the NDPS Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction, we are of the view that no case for suspension of sentence under Section 389(1) of CrPC was established. The order granting suspension of sentence under Section 389(1) of CrPC is unsustainable and would accordingly have to be set aside.
In view of the above discussion, I find that no case for suspension of sentence under Section 389(1) of the Cr.P.C. is made out. Hence, I.A. No.24006/2021 is accordingly dismissed.
List for final hearing in due course along with Cr.A.No.8310/2021.
(DINESH KUMAR PALIWAL) JUDGE BIJU BABY b 2022.03.2 4 18:34:39 +05'30'