Golu @ Rupesh vs State Of Madhya Pradesh

Heard on the question of admission.

Admitted.

Also heard on I.A. No. 23053/19, an application for suspension of sentence and grant of bail to the applicant.

Vide judgment dated 09.12.2019, passed by learned Special Judge (NDPS Act) Khandwa, the appellant has been convicted for the offence punishable

under Section 8/20(b) (II) (B) of NDPS Act and sentenced to undergo R.I. for 4 years with fine of Rs. 15,000/- also with default stipulation.

According to case, on 05.01.2017, on the basis of information received from an informant, the police officials along-with two independent witlessness

proceeded towards the house of appellant where the appellant, his wife and mother were found present. After giving an information regarding

compliance of Section 50 of NDPS Act and taking his consent, a search was made by officials and they found 2.5 k.g. Ganja under the bed in a carry

beg. After completing all other formalities, the police has arrested the appellant/accused and filed the charge sheet before the Court below. The

learned trial Court found the appellant guilty and convicted him as aforesaid.

Learned counsel for the appellant submits that the appellant is in jail since 09.12.2019 and during trial he was remined in jail for some period. The

learned trial Court erred in convicting the appellant whereas no offence is made out against him. He further submits that in the case, there is violation

of Sections 42 and 57 of NDPS Act because no information was given to senior officer. The police proceeded without search warrant. There is no

independent witness has been examined before the trial Court. The police has not seized any ganza from the exclusive possesion of the present

appellant. The seized substance is not of commercial quantity. There is material contradictions and ommissions were found in the statement of the

prosecution witnesses. Hence, execution of jail sentence of the appellant may be suspended and he may be released on bail.

On the other hand learned panel lawyer for the respondent/State opposes the application submitting the learned trial Court rightly considered the

evidence and made no error in convicting the appellant. With the aforesaid, he prays for rejection of this application.

Heard both the parties and perused the record.

On perusal of record, it appears the police has seized 2.5 kg Ganja from the house of appellant which is lesser than commercial quantity but greater

then small quantity. Since, in the case, the contravention relates to lesser than commercial quantity, therefore, no bar of specific provision comes in the

way of appellant/accused on grant of bail.

Here in the case, admittedly, the Ganja was seized from the house not from the exclusive possession of appellant/accused. Chinta Ram Patel (PW-10)

who was the patwari deposed in his cross examination that in record, the said house is not in the name of appellant/accused. The two independent

witnesses namely Sachin (PW-2) and Ramchand (PW-6) have been examined by the trial Court and both have turned hostile. Witness Ramchand has

completely turned hostile and not supported the case of prosecution. The appellant has suffered about more than 6 months of jail sentence and there is

no minimum punishment is prescribed for the offence punishable under Section 8/20(b) (II) (B) of NDPS Act.

Therefore, considering the above said circumstances, I found reasonable ground but without commenting on merits of the case, I am inclined to

suspend the execution of jail sentence awarded to the appellant. Consequently, I.A. No. 23053/19, is allowed subject to deposit of fine amount, if not

already deposited. The execution of custodial sentence awarded to the appellant shall remain suspended during the pendency of this appeal.

Appellant-Golu @ Rupesh be released from custody subject to his furnishing a personal bond in the sum of Rs. 50,000/- (Rupees Fifty

Thousand Only) with one surety in the like amount to the satisfaction of the trial Court. The appellant shall appear and mark his presence before trial

Court on 15.12.2020 and shall continue to do so on all such future dates as may be given in this behalf, during pendency of the matter.

In view of the outbreak of 'Corona Virus disease (COVID-19)' the appellant shall also comply with the rules and norms of social distancing. Further,

in view of the order passed by the Hon'ble Supreme Court in suo moto W.P.No.1/2020, it would be appropriate to issue the following direction to the

jail authority :-

The Jail Authority shall ensure the medical examination of the appellant by the jail doctor before his release.

2 . The appellant shall not be released if he is suffering from 'Corona Virus disease'. For this purpose appropriate tests will be carried out.

3 . If it is found that the appellant is suffering from 'Corona Virus disease', necessary steps will be taken by the concerned authority by placing him in

appropriate quarantine facility.

List this matter for final hearing in due course, as per listing policy. C.C. as per rules.