RAMDAYAL Vs. STATE OF MP

JUDGEMENT

(1.) HEARD . The appellant -applicant has prayed for suspension of his sentence and release of bail. He has been convicted by the Court below for offence under section 8 read with section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for short 'NDPS Act') and sentenced to ten years rigorous imprisonment and a fine of Rs. one lac; and two years rigorous imprisonment in default of payment of fine.

(2.) THE facts briefly stated are that the appellant -applicant was found in illegal possession of 360 grams of opium when search was effected on his person on the basis of an information that he was carrying opium while travelling in train. The learned counsel appearing for the applicant placing reliance upon the decision in the case of Dadu alias Tulsidas v. State of Maharashtra [(2000) 8 SCC 437] contended that the bar under section 32A of the NDPS Act does not come in the way of Courts in exercising their powers under section 389 of the Criminal Procedure Code in the matter of suspension of sentence. It was further contended that there has been non -compliance of section 50 of the NDPS Act inasmuch as the material available on record goes to show that accused was not apprised of his right under section 50 of the NDPS Act to have his search in presence of a Gazetted Officer or a Magistrate, and therefore, the prosecution has failed to prove that the appellant -applicant was in possession of the opium and his conviction, therefore, is not sustainable. It was also submitted that the independent witnesses too on the search have not supported the prosecution case and that also goes to help the appellant -applicant. In this connection reliance was placed on the judgment in the case of K. Mohanan v. State of Kerala [(2000) 10 SCC 222].

(3.) SUB -section (2) of section 37 of the NDPS Act contemplates that the limitations in the matter of grant 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. The appellant -applicant hails from Rajasthan and as per prosecution story, he was caught at Railway Station, Guna while travelling in Kota -Beena passenger running in between Rajasthan and the Madhya Pradesh. He has not deposited the fine nor has the capacity to pay, as stated on his behalf. On perusal of the impugned judgment, it appears that he was on bail during trial and was available till conclusion of trial and on the date of judgment, he was taken into custody. It indicates that the liberty on bail was not misused by the appellant - applicant.