Abhishek Kumar Singh vs State Of Madhya Pradesh

Heard on admission.

The appeal contains arguable points and is accordingly admitted for final hearing.

Heard on I.A.No.15466/2019, the first application on behalf of the appellant under Section 389(1) of Cr.P.C for suspension of sentence and grant of bail to the appellant.

The appellant was convicted under Section 8(c) read with Section 20(B)(ii)(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo R.I. for for ten years with fine of Rs.1,00,000/- with default stipulation.

Learned counsel for the appellant submits that the appellant is in jail since 03.04.2017. The appellant has been falsely implicated in this case. In the connected matter Cr.A. No.4858/2019, this Court on 13.08.2020 suspended the remaining jail sentence of appellant therein. From the appellant of CRA. No.4858/19 Anand Vibhore Rajpoot 758 gram "Charas" was allegedly recovered whereas the quantity of same substance allegedly recovered from this appellant is 1.1kg. The age of both the appellants is almost same i.e., 23 years. The appellant of CRA. No.4858/19 Anand remained in jail for about 23 months whereas present appellant remained in jail for about three and a half years. This appellant is also the first offender. Learned counsel for the appellant submits that apart from the amount of objectionable substance allegedly recovered from this appellant, on merits this case is almost similar to the case of Anand Vibhore Rajpoot. Hence, remaining jail sentence may be suspended on the principle of parity.

Prayer is opposed by learned P.L. by contending that crime number on the strength of which impugned judgment was passed are different in both the cases. However, it is not disputed that the judgment under challenge is common in both the appeals.

I have heard the parties on this aspect.

This Court in order dated 13.08.2020 passed in CRA. No.4858/19 (Anand Vibhore Rajpoot vs. State) recorded as under:-

"Learned counsel for the appellant submits that as per prosecution story, 758 grams of "Charas" is recovered from this appellant. As per entry 23 of the relevant schedule it is a "medium quantity". The appellant has no previous criminal record. Arising out of this crime number he remained in jail for about 23 months. By taking this court to the notice prepared under Section 50 of the NDPS Act (Ex.P/4), it is urged that if this document is examined in juxtaposition to another memo by which some money is recovered from the appellant, it will be clear that money is recovered prior in time and while preparing said memo in relation to recovery of money from the trouser of the appellant, no mention is made about recovery of objectionable substance "Charas". It is an after thought and Ex.P/4, the notice under section 50 of the Act was subsequently prepared. It creates serious doubt about preparation of the notice Ex.P/4. The action runs contrary to the law laid down by the Apex Court in the case reported in 2018(18) SCC 380 (Arif Khan Vs. State of Uttarakhand). It is urged that the trouser from which the substance is allegedly recovered was not seized at all. The independent seizure witnesses had turned hostile. In the similar backdrop this court in Cr.A.No.8727/18, on 09.06.2020 granted bail wherein the quantity of objectionable substance was 01 Kg. Similarly, in Cr.A.No.8336/18, the coordinate bench granted bail on 03.10.2019 wherein the quantity was 750 grams. The Appellant is a young boy and final hearing of this appeal is not possible in near future. Considering the aforesaid, the jail sentence of the appellant may be suspended."

Prima facie, I find substance in the argument of learned counsel for the appellant that only difference between the case of present appellant with that of Anand appears to be relating to quantity of objectionable substance. Thus, by applying principle of parity, I deem it proper to suspend the remaining jail sentence of appellant Abhishek Kumar Singh.

Considering the arguments of learned counsel for the parties, the quantity of substance recovered, the orders passed by the co0ordinate bench in aforesaid criminal appeals coupled with the fact that hearing of this appeal will take time, without expressing any opinion on merits of the case, I deem it proper to suspend the remaining jail sentence of the appellant.

Accordingly, the said I.A is allowed. It is directed that appellant Abhishek Kumar Singh be released on bail on his furnishing personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand) alongwith one surety in the like amount to the satisfaction of the trial court for his appearance before the Trial Court, Bhopal on 22.12.2020 and on such further dates as are given to him by that court till final hearing of this appeal or until otherwise directed by this court in that behalf.

C.C as per rules.