Chattisgarh High Court
Basant Guru vs State Of Chhattisgarh on 22 August, 2022
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
CRA No. 96 of 2020
1. Basant Guru S/o Ayodya Guru Aged About 40 Years R/o Ward No.2, Nidhiband
Talipada, Police Station Bargarh, District Bargarh, Orissa.
2. Satish Kumar Pradhan S/o Prabodh Kumar Pradhan Aged About 32 Years
Occupation Vehicle Driver, R/o Kunjalpada, Police Station Town, District
Sambalpur, Orissa.
---- Appellants
Versus
• State of Chhattisgarh Through Station House Officer, Police Station Tarbahar,
District Bilaspur, Chhattisgarh.
---- Respondent
22/08/2022 Mr. Vikash Pradhan, counsel for the appellants.
Mr. B.P. Banjare, Dy. G.A. for the State.
Heard on I.A. No. 01/2021, application for change of previous
counsel.
Upon due consideration I.A. No. 01/2021 is allowed.
Also heard on I.A. No.01/2020, which is an application for
suspension of sentence and grant of bail.
By the impugned judgment dated 17.12.2019 passed by learned
Special Judge (N.D.P.S.) Act, Bilaspur, District - Bilaspur (C.G.) in NDPS
Special Case No. 01/2017, the appellants have been convicted for the
offence punishable under Section 20(b)(ii-c) of the NDPS Act and
sentenced them to undergo R.I. for 10 years and fine of Rs. 1,00,000/-
in default thereof to undergo additional R.I. for six months.
Learned counsel for the appellant submits that the appellants
would submit that the conviction of the appellant under Section 21(b)
(ii-c) of the N.D.P.S. Act, 1985 by the trial Court is totally erroneous and
against the facts and law. The Investigating Officer did not comply with
the second proviso of Section 42 of the Act, 1985. The conviction of the
appellants is bad in this respect that the witnesses of search and
seizure have turned hostile. Hence, it is based only on the evidence of
Investigating Officer - A.K, Diwedi (PW-11), who is not a reliable
witness. Mandatory provision of Section 55 is also violated in this case,
so the appellants have good prima facie case in their favour, therefore,
their application may be allowed and sentence imposed upon the
appellants may be suspended and they may be released on bail. He has
placed his reliance on the decisions of this Court in the matter of State
of Chhattisgarh vs. Devendra Singh passed in CRMP No. 858/2021
vide order dated 14.06.2022 & in the matter of Rakesh Chandrakar
Vs. State of Chhattisgarh passed in CRA No. 973/2021 vide order
dated 04.01.2022 and on the decision of Hon'ble the Supreme Court in
the matter of Chhunna Alias Mehtab Vs. State of M.P. reported in
(2002) 9 SCC 363.
On the other hand, the learned State counsel opposes the prayer
for suspension of sentence and grant of bail. It is submitted that the
learned trial Court has not committed any error in convicting the
appellant for the offence as mentioned hereinabove. I.O. strictly
complied with the provisions under Section 42 of the Act, 1985 and
Section 55 of the Act, 1985.
Heard learned counsel for the parties and perused the documents
available on record.
There is a restriction under Section 32(a) of the Act, 1985
according to which, no sentence awarded under the Act, 1985 other
than Section 27 shall be suspended or remitted or commuted. In case
of Dadu @ Tulsidas (supra), the Supreme Court has held in
paragraph -25, which is as under:-
"25. Judged from any angle, the section insofar as it
completely debars the appellate Courts from the power
to suspend the sentence awarded to a convict under the
Act cannot stand the test of constitutionality. Thus
Section 32-A insofar as it ousts the jurisdiction of the
court to suspend the sentence awarded to a convict
under the Act is unconstitutional. We are, therefore, of
the opinion that the Allahabad High Court in Rm Charan
case has correctly interpreted the law relating to the
constitutional validity of the section and the judgment of
the Gujarat High Court in Ishwar Sinh M. Rajput case
cannot be held to be good law."
In the present case the independent witnesses of search and
seizure Baba @ Rehan Khan (PW-1), Firoz Khan (PW-2) and Pappu
Manikpuri (PW-6) have not supported the case of the prosecution. The
learned trial Court has placed whole reliance on the deposition of the
Investigating Officer A.K. Diwedi (PW-11) and convicted the appellants.
The evidence of Investigating Officer has been challenge in this appeal
regarding which submissions have been made hereinabove. Hence,
under these circumstances, taking into consideration that the
independent witnesses of search and seizure have not supported the
case of the prosecution, which appears to be reasonable ground on
which the appellants are placing reliance, hence, this appears to be a
ground, which qualified under the restrictions under Section 37 of the
act, 1985. Hence, it is fit case to suspend the sentence and release the
appellant on bail.
Accordingly, I.A. No. 01/2020, application for suspension of
sentence and grant of bail is allowed.
Execution of substantive jail sentence imposed on appellants
shall remain suspended and they are directed to be released on bail on
their executing a personal bond for a sum of Rs. 1,00,000/- each with
one surety for the like sum to the satisfaction of the trial Court for his
appearance before the Registry of this Court on 27th September,
2022. They shall thereafter appear before the trial Court on a date to
be given by the Registry of this Court and shall continue to appear
there on all such subsequent dates as are given to them by the said
Court till the disposal of this appeal.
List this case for final hearing in its due course.
Certified copy as per rules.
Sd/-
(Rajani Dubey)
Judge
H.L. Sahu
