# Hemraj Patwa v. State of U.P

- **Citation:** (2023) 5 ILRA 1684
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-13
- **Case number:** Criminal Appeal No. 8454 of 2022
- **Bench:** Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hemraj-patwa-v-state-of-u-p-50241
- **Pages:** 6

## Headnote

Law-The
Code
of
Criminal
Procedure, 1973-Section 389(1) & 439-
There is a difference between the grant of
bail under Section 439 of the CrPC in case
of pre-trial arrest and the suspension of
sentence under Sec 389(1) of the CrPC
and the grant of bail, post-conviction. In
the
earlier
case,
there
may
be
a
presumption of innocence, which is a
fundamental
postulate
of
criminal
jurisprudence. The courts may take a
liberal view depending on the facts and
circumstances of the case, whereas in the
case of post-conviction bail, there is a
finding of guilt against the accused
persons. The question of presumption of
conviction does not arise. 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 the
grant of bail, which must be recorded in
the order granting bail. (Para 11) (E-15)

List of Cases cited:

## Text

1684 INDIAN LAW REPORTS ALLAHABAD SERIES
Allahabad 318 holding that an application
under Order XXIII Rule 1 of the Code of
Civil Procedure, 1908 once moved, leads to
a withdrawal of the suit ipso facto without
the Court passing an affirmative order, is
still good law, in view of the subsequent
decision of the Full Bench in The Sunni
Central Board v. Sri Gopal Singh
Visharad, 2010 ADJ 1 (SFB)(LB) and the
Supreme Court in M. Siddiq (dead)
through
legal
representatives
(Ram
Janmabhoomi Temple case) v. Mahant
Suresh Das and others, (2020) 1 SCC 1
and Anurag Mittal v. Shaily Mishra
Mittal, (2018) 9 SCC 691 ?

(ii) Whether the decision in
Meera Rai v. Additional Sessions Judge
and others, 2017 (12) ADJ 817 does not
lay down the law correctly, in view of the
law laid down by the Supreme Court in
Anurag Mittal v. Shaily Mishra Mittal,
(2018) 9 SCC 691 on the issue if the mere
lodging of an application to unconditionally
withdraw a suit under Order XXII Rule 1
of the Code of Civil Procedure, 1908
operates as a withdrawal of the suit ipso
facto and without an affirmative order ?

31. In view of the orders of the
Supreme Court in Misc. Application No.
315 of 2022 in Special Leave Petition (C)
No. 6526 of 2020 dated 28.02.2022, the
Registry is directed to place the matter
urgently before His Lordship the Hon'ble
The Chief Justice for constitution of a
larger Bench.
----------
(2023) 5 ILRA 1684
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.04.2023

BEFORE

THE HON'BLE VINOD DIWAKAR, J.
Criminal Appeal No. 8454 of 2022
And
Criminal Appeal No. 7997 of 2022

Hemraj Patwa ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rahul Pandey, Sri Rang Nath Pandey

Counsel for the Opposite Party:
G.A.

Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section 389(1) & 439-
There is a difference between the grant of
bail under Section 439 of the CrPC in case
of pre-trial arrest and the suspension of
sentence under Sec 389(1) of the CrPC
and the grant of bail, post-conviction. In
the
earlier
case,
there
may
be
a
presumption of innocence, which is a
fundamental
postulate
of
criminal
jurisprudence. The courts may take a
liberal view depending on the facts and
circumstances of the case, whereas in the
case of post-conviction bail, there is a
finding of guilt against the accused
persons. The question of presumption of
conviction does not arise. 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 the
grant of bail, which must be recorded in
the order granting bail. (Para 11) (E-15)

List of Cases cited:

1. Preet Pal Singh Vs St.of U.P 2020 (8) SCC
645

2. Kashmira Singh Vs St.of Pun. 1977 (4) SCC
291

3. Babu Singh and Ors. Vs St.of U.P. 1978 (1)
SCC 579

4. Kalyan Chadra Sarkar Vs Rajesh Ranjan &
anr. 2004 (7) SCC 528
5 All. Hemraj Patwa Vs. State of U.P.
1685
5. Chaman Lal Vs St.of U.P. & anr. 2004 (7) SCC
525

(Delivered by Hon'ble Vinod Diwakar, J.)

In
Re:
Criminal
Misc
Suspension of Sentence Applications

1. I have heard learned counsel for the
accused - appellants and learned A.G.A for
the State.

2. Aggrieved by the judgment and
order
dated
30.09.2022
passed
by
Additional
Sessions
Judge/F.T.C.-
II/Special Judge, N.D.P.S. Act, Kaushambi,
in Case No. 14 of 2012 titled as State Vs.
Bhola Patel (lead case), the accusedapplicant Hemraj Patwa, and Vinita Devi
have preferred separate appeals bearing
Criminal Appeal No. 8454 of 2022 and
Criminal Appeal No. 7997 of 2022,
respectively. The accused, Bhola Patel,
Raju Maurya @ Anil Kumar and Manoj
Kumar Maurya, have been acquitted under
Section 8/20 NDPS Act by giving the
benefit of the doubt, whereas accusedappellants Hemraj Patwa and Vinita Devi
have been convicted and sentenced to ten
years rigorous imprisonment along with
fine of Rs. 1,00,000/- each.

3. As per the prosecution case, on
17.04.2012 at about 12.30 p.m. SHO
Dinesh Prakash Pandey, along with other
police
officials,
were
patrolling
and
checking the anti-social elements. At the
same time, SI Onkar Nath Pandey,
Hawaldar
Singh
and
lady
constable
Rukmani Devi have also joined the police
party. On receipt of secret information that
accused Bhola of village Pachasa P.S. Saini
has hidden huge quantity of Ganja in his
thatch and he could be arrested along with
other suspects. Upon conducting the raid,
one man and one woman were apprehended
by the police, but one man ran away from
the place of the incident taking advantage
of
darkness.
On
enquiry
from
the
apprehended suspects, one disclosed his
name as Hemraj Patwa and the woman
disclosed her name as Vinita Devi W/o
Bhola Patel. On enquiry from the suspects,
it's revealed that Bhola Patel had escaped
by taking advantage of darkness. Upon
compliance with the statutory provisions, a
huge quantity of recovery seizure was
made, and a total of 152 Kg Ganja was
recovered from the possession of accused
persons. The 152 Kg Ganja have been kept
in four bags, each containing 47 kg, 45 kg,
35 Kg and 25 Kg. From the possession of
Hemraj Patwa, two bags of Ganja were
recovered containing 47 Kg and 45 Kg
each, whereas 60 Kg of Ganja was
recovered from accused Vinita Devi, kept
in two bags containing 35 Kg and 25 Kg
each.

4. Upon completion of the trial, both
the accused-appellants were awarded the
maximum sentence of 10 years and a fine
of Rs.1,00,000/- and in default payment of
the fine, the accused-appellants were
further
directed
to
undergo
simple
imprisonment for a period of two years.

5. Learned counsel for the accused
appellants
submits
that
the
accusedappellants were falsely implicated in the
case at the behest of police. He further
urged that when the matter was highlighted
in the media on the national level and in
local newspapers, that the huge quantity of
contraband has been recovered from the
truck container within the jurisdiction of
P.S. Saini, District Kaushambi, the driver
and Khalasi of the truck were let to go by
the police by taking huge bribe. The actual
culprits paid the bribe, and they were freed
1686 INDIAN LAW REPORTS ALLAHABAD SERIES
by the police and planted the recovery on
the accused-appellants. He further urged
that no independent witnesses to the
recovery have been produced by the
prosecution nor the compliance of Section
50 of the NDPS Act been effected. The
investigating officer has also not complied
with the requirement of Section 57 of the
NDPS Act. He further urged that the
information of the alleged recovery was not
provided to the senior officers immediately,
violating the spirit of Section 42 of the
NDPS
Act.
The
non-compliance
of
Sections 42, 50 and 57 has seriously
damaged the prosecution's case, and the
prosecution has failed to prove the recovery
from the possession of accused persons and
lastely urged that both the accused persons
were on bail during the trial.

6. Per contra, learned A.G.A.
submits that the provisions of Sections
42, 50 and 57 of NDPS Act have been
duly complied with by the investigating
agency, the same has been duly proved
from the perusal of the testimony of S.I.
Dinesh Prakash Pandey, Inspector Raj
Kumar Pandey, S.I. Onkar Nath Pandey
and Inspector Ravindra Tiwari. Learned
A.G.A further urged, upon perusal of the
trial court record, it transpires that a huge
quantity of Ganja measuring 152 Kg was
recovered from the possession of the
accused persons. Learned A.G.A further
submits
that
the
testimony
of
the
prosecution witness cannot be discarded
only because the prosecution case is
proved by the official witnesses in the
present case. S.I. Dinesh Prakash Pandey,
Inspector Raj Kumar Pandey, SI Onkar
Nath Pandey and Inspector Ravindra
Tiwari
have
fully
supported
the
prosecution case, and their testimony is
consistent
and
reliable.
He
further
submits that the recovery of contraband
substances has been effected from the
possession of accused-appellants Hemraj
Patwa and Vinita Devi.

7. Admittedly, the huge commercial
quantity of Ganja of 152 Kg has been
recovered
from
the
possession
of
accused-appellants Hemraj Patwa and
Vinita Devi, and they are presumed to
have the criminal mental State to possess
the above contraband substance, and
hence burden lies upon them to prove the
absence of criminal intent.

8. Even though the police witnesses
are interested witnesses, but there is no
reason on record to disbelieve the
testimony of above said witnesses.

9. Therefore, the combined effect of
Sections 35 and 54 of the NDPS Act is that
if the accused is found to be in possession
of contraband substance, the Court shall
presume that he has committed an offence
under the provisions of the Act unless or
until the contrary is proved further, if the
criminal mental State of the accused is
required to be established for the offence.
In that case, the Court shall also presume
that the accused shall have a mental state,
and it is only the defence of the accused to
prove that he has no such mental state to
possess contraband.

10. The short question that arises for
consideration in this application is, whether
accused-appellants are entitled to be
released on bail when they were on bail
during the trial.

11. As observed by this Court in
Preet Pal Singh vs. State of U.P.1, There
is a difference between the grant of bail
under Section 439 of the CrPC in case of
pre-trial arrest and the suspension of
5 All. Hemraj Patwa Vs. State of U.P.
1687
sentence under Section 389(1) of the CrPC
and the grant of bail, post-conviction. In the
earlier case, there may be a presumption of
innocence,
which
is
a
fundamental
postulate of criminal jurisprudence. The
courts may take a liberal view depending
on the facts and circumstances of the case,
whereas in the case of post-conviction bail,
there is a finding of guilt against the
accused
persons.
The
question
of
presumption of conviction does not arise.
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
the grant of bail, which must be recorded in
the order granting bail.

12. The discretion under Section
389(1) is to be exercised judicially, and the
High Court is obliged to consider whether
the accused has a strong likelihood to
succeed in appeal, and there is no
unreasonable delay in disposal of the
appeal, as held by Apex Court in
Kashmira Singh v. State of Punjab2 and
Babu Singh and Ors. v. State of U.P.3

13. In Kalyan Chadra Sarkar v.
Rajesh Ranjan and Anr4, the Hon'/ble
Supreme Court has held:-

"11. The law in regard to grant
or refusal of bail is very well settled. The
Court granting bail should exercise its
discretion in a judicious manner and not as
a matter of course. Though at the stage of
granting bail a detailed examination of
evidence and elaborate documentation of
the merits of the case need not be
undertaken, there is a need to indicate in
such orders reasons for prima facie
concluding why bail was being granted,
particularly where the accused is charged
of having committed a serious offence. Any
order devoid of such reasons would suffer
from non-application of mind."

14.

Even
though
a
detailed
examination of the merits of the case may
not be required by the courts while
considering an application for bail, at the
same time, the exercise of jurisdiction has
to be based on well-settled principles and in
a judicious manner and not as a matter of
course as held by this Court in Chaman
Lal v. State of U.P. and Anr5.

15. Be that as it may, the detailed
examination of evidence and detailed
documentation on the merits of the case
need not be undertaken while deciding the
application of suspension on bail. The
power of this Court to grant bail under
Section 389(1) Cr.P.C, are subject to the
limitations contained in amended Section
37 of the NDPS Act, and the restrictions
placed on the power of the Court under the
said section are applicable to this Court in
the matter of granting bail.

16. Hon'ble Supreme Court in Preet
Pal Singh (supra) has held as under:-

"35.
There
is
a
difference
between the 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 the grant of bail, postconviction. In the earlier case, there may
be a presumption of innocence, which is a
fundamental
postulate
of
criminal
jurisprudence. 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.
and Anr. (supra). However, in case of postconviction bail, by suspension of operation
1688 INDIAN LAW REPORTS ALLAHABAD SERIES
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 a
conviction upon 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 the grant of
bail,
notwithstanding
an
order
of
conviction, by suspension of sentence. This
strong and compelling reason must be
recorded in the bail order, as mandated in
Section 389(1) of the Cr.P.C.

38.
In
considering
an
application for suspension of sentence,
the Appellate Court is only to examine if
there is such patent infirmity in the order
of conviction that renders the order of
conviction prima facie erroneous. Where
there is evidence that the Trial Court has
considered, it is not open to this Court to
consider the application under Section
389 (1) Cr.P.C to re-assess and/or reanalyze the same evidence and take a
different view, to suspend the execution of
the sentence and release the convict on
bail."

17. The huge quantity of 152 kg of
Ganja has been recovered from the
possession of the accused-appellants, and
they are presumed to have the criminal
mental
State
to
possess
the
above
contraband substance; hence burden lies
upon them to prove the absence of criminal
intent.

18. The accused-appellant, Hemraj
Patwa is involved in four cases registered at
Police
Station
Dhoomanganj,
District
Prayagraj. The details are as under:-

(i) Case Crime No. 186 of 2012,
under Section 8/20 N.D.P.S. Act, P.S.
Saini, District Kaushambi.

(ii) Case Crime No. 233 of 2016,
under Section 3/25 Arms Act, P.S. Pipari,
District Kaushambi.

(iii) Case Crime No. 199 of 2016,
under Section 3025/120B IPC, P.S. Pipari,
District Kaushambi.

(iv) Case Crime No. 348 of 2016,
under Section 2/3(1) U.P. Gangster Act,
P.S. Pipari, District Kaushambi.

19. The total custody period of
accused-appellant Hemraj Patwa as on date
is 10 months and 15 days with remission
whereas total custody period of accusedappellant Vinita Devi as on date is 11
months and 2 days with remission.

20. (i) The counsel for the accusedappellants could not point out patent
infirmity in the order of conviction that
renders the order of conviction prima facie
erroneous. At this stage, it is not open to
this Court to reassess and / reanalyze the
same evidence to take a different view, to
suspend the execution of the sentence and
release the convict on bail.

20. (ii) Considering the actual custody
of
the
accused-appellants,
the
huge
commercial quantity of Ganja recovered
from the possession of the accusedappellants.

20. (iii) And the condition contained
in Section 37 of the NDPS Act are not
satisfied.

21. The application for suspension of
sentence filed in Criminal Appeal No.8454
5 All. M/s Chaudhary Properties & Ors. Vs. Smt. Laxmi Devi
1689
of 2022 and Criminal Appeal No.7997 of
2022 are rejected.

22. Through this common order, the
applications for suspension of the sentence
of accused-appellants Hemraj Patwa and
Vinita Devi are disposed of accordingly.

23. The observation made by this
Hon'ble Court while disposing of the
application for suspension of sentence in
Criminal Appeal No.8454 of 2022 and
Criminal Appeal No.7997 of 2022 shall
have no bearing on the outcome of the final
appeal.

24. List this appeal for hearing after
six months. If the appeal is not heard within
two years despite the cooperation and
endeavours of the accused-appellants, they
shall be at liberty to revive the prayer for
grant of bail.
----------
(2023) 5 ILRA 1689
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2023

BEFORE

THE HON'BLE DINESH PATHAK, J.

Second Appeal No. 318 of 2023

M/s Chaudhary Properties & Ors.
 ...Appellants
Versus
Smt. Laxmi Devi ...Respondent

Counsel for the Appellants:
Sri Ram Dayal Tiwari, Sri M.D. Singh
Shekhar (Sr. Advocate)

Counsel for the Respondent:
Sri Rahul Mishra, Sri Sanjay Mishra, Sri
Satendra Kumar Singh, Sri Suresh Chandra
Varma, Sri S.K. Verma
Civil Law-The Contract Act,1872-Section
10 read with Sec 2(e)- There is no case of
any party that formation of concluded oral
agreement
was
result
of
misrepresentation or undue influence or
without free will, therefore, formation of
contract under Section 10 read with
Section 2 (e) and (h) of Contract Act
cannot be denied-Agreement can be oral
and
same
is
enforceable
provided
formation of the contract is with free willIn absence of written document particular
period/time limit, prima facie, cannot be
said to be an essence for the agreement
and same cannot be ascertained in the
absence
of
written
terms
and
conditions.(Para 10, 13 & 15)

The Specific Relief Act, 1963-Section 39The court may in its discretion grant
mandatory
injunction,
when
it
is
necessary to compel the performance of
certain contracts which the court is
capable of enforcing, to prevent the
breach of an obligation and also to compel
the performance of requisite act. (Para
19)

Appeal dismissed. (E-15)

List of Cases cited:

1. Atma Ram Vs Charanjeet Singh reported in
(2020) 3 SCC 311

2. Badri Prasad Vs St .of M. P. & anr., AIR 1970
Supreme Court 706

3. Brij Mohan & ors.Vs Smt. Sugra Begum &
ors.(1990) 4 SCC 147

4. Aloka Bose & ors.Vs Parmatma Devi &
ors.(2009) 2 SCC 582

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard Shri M.D.Singh Shekhar,
learned Senior Counsel assisted by Shri
R.D.Tiwari,
learned
counsel
for
the
appellant and Shri S.K.Verma and Shri
S.K.Singh,
learned
counsel
for
the