Raju Jaiswal vs Unknown
2021 Latest Caselaw 2962 Cal

     14.
 22-04-2021
debajyoti/kole
                                 CRA No.262 of 2020
                                       with
                                IA NO:CRAN/1/2020
                                       with
                                IA NO:CRAN/2/2020

                 In re:   An application under Section 389(1) of the Code of
                 Criminal Procedure filed on 23-12-2020 being CRAN 2 of
                 2020.
                                     -And-

                 In the matter of : Raju Jaiswal
                                                           .... Applicant.


                 Mr. Milon Mukherjee,
                 Mr. Dipanjan Chatterjee,
                 Mr. Antarikhya Basu,
                 Ms. Madhumita Basak,
                 Mr. Sayan Mukherjee
                                             ... For the Applicant.

                 Mr. Sanjoy Bardhan,
                 Ms. Manisha Sharma
                                                   ... For the State.

                                     Re : CRAN 2 of 2020


                  1.

This is an application for suspension of sentence and grant of bail pending disposal of the appeal, by the sole appellant who was one of the four accused persons and stood convicted for commission of offence under Sections 20(b)(ii)(C)/29/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'). By the judgment and order dated August 21, 2019 passed by the City Sessions Court, Calcutta, along with the other convicted persons, the applicant herein was sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-, in default, to suffer further rigorous imprisonment for six months.

2. Learned counsel for the applicant submitted that the only allegation against the applicant is that the vehicle from which the commercial quantity of Ganja was seized, is jointly owned by the applicant with his mother, Rashmoni Devi, who is one of the other accused persons. The three out of four accused persons including the applicant's mother were in the vehicle when the seizure was made therefrom. The applicant was not at the scene. No recovery was made from the applicant. The applicant has been roped in only under Section 29 of the NDPS Act for abetment and criminal conspiracy.

3. Learned counsel for the applicant pointed out that the applicant's mother who was found to be in the car from which the contraband was seized, has been granted bail by this Court by an order dated February 23, 2021 passed in IA NO:CRAN/2/2020 in CRA 670 of 2019, on the terms and conditions mentioned in such order. He submitted that the applicant stands on a better footing and, hence, should be granted bail upon suspension of the sentence that he is suffering.

4. Learned counsel for the State submitted that the complicity and culpability of the applicant has been proved to the hilt on the basis of the material evidence. He said that admittedly, the applicant is co-owner of the vehicle from which 153 kgs. of Ganja was seized and the evidence on record clearly establishes that the applicant was a part of the criminal conspiracy to commit the offence for which he stands convicted.

5. We have perused the judgment under appeal. The only basis on which the applicant appears to have been held guilty is the admission in his statement recorded under Section 313 of the Code of Criminal Procedure to the effect that the concerned Scorpio car is jointly owned by him. Whether or not that would suffice for holding him

guilty for abetment or criminal conspiracy to commit an offence under Section 20(b)(ii)(C) of the NDPS Act is, in our opinion, a highly arguable point.

6. On the whole, we are satisfied that the appeal, in its final consideration, would call for adjudication as to the sustainability of the finding of the applicant's guilt and consequential order of conviction and sentence. That would naturally be based on the appreciation of the legal evidence on record and other facts and factors which may be relevant at that stage. We are of the view that the applicant has a reasonably arguable case for acquittal at the final hearing of the appeal.

7. Further, we are apprised that the applicant was on bail throughout the trial. It is nobody's case that the applicant jumped the bail or breached any condition of bail.

8. For the reasons afore-stated, this application succeeds. The applicant, Raju Jaiswal, shall be released on bail upon furnishing a bond of Rs.3,00,000/- with three solvent sureties of Rs.50,000/- each, one of whom must be local, to the satisfaction of learned Chief Metropolitan Magistrate, Calcutta, on condition that the appellant shall appear before the convicting court once in a month until further orders and shall be personally present or be represented before this Court when the appeal is taken up for hearing and on further condition that the applicant shall not involve himself in any activity which may amount to an offence punishable under the law.

9. The observations made in this order are prima facie and only for the purpose of disposing of this application.

10. The application being CRAN 2 of 2020 is, thus, disposed of.

11. Criminal Section is directed to supply urgent photostat certified copies of this order to the parties, if applied for, upon compliance of all necessary formalities.

( Thottathil B. Radhakrishnan, C.J. )

( Arijit Banerjee, J. )