Chattisgarh High Court
Rakesh Chandrakar vs State Of Chhattisgarh on 4 January, 2022
1
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
CR.A. No. 973 of 2021
Rakesh Chandrakar, S/o. Late Shri Shiv Kumar Chandrakar, aged about 39
years, R/o. Post Office Lane Telibandha, Police Station Telibandha, Raipur,
Tahsil and District Raipur Chhattisgarh.
---- Appellant
Versus
State of Chhattisgarh, Through : Police Station Telibandha, Raipur, District -
Raipur Chhattisgarh.
---- Respondent
Mr. Harshwardhan Parganiha, counsel for the appellant.
04/01/2022
Ms. Shivali Dubey, P.L. for the State.
Heard on I.A. No.1/2021, application under Section 389 of
Cr.P.C. for suspension of sentence and grant of bail.
Appellant has been convicted by the judgment of conviction
and order of sentence dated 31.07.2021, passed in Special
Criminal Case No.34/2020, by the learned Special Court (NDPS
Act), Raipur, District- Raipur (C.G.) in the following manner with a
direction to run both the sentences concurrently :-
U/s. 21 (C) of the Narcotic : R.I. for 12 years and fine of
Drugs and Psychotropic Rs.1,00,000/- and in default of
Substances Act, 1985 payment of fine, further undergo
1 year rigorous imprisonment
more.
U/s. 21 (A) of the Narcotic : R.I. for 6 months and fine of
Drugs and Psychotropic Rs.5,000/- and in default of
Substances Act, 1985 payment of fine, further undergo
two months rigorous
imprisonment more.
Learned counsel appearing for the appellant would submit
that the conviction of the appellant under Section 21 (C) and 21 (A)
of the N.D.P.S. Act, 1985 (in short 'the Act, 1985') by the trial Court
is totally erroneous and against the facts and law. It was clear case,
in which the Sub-Inspector, Divya Sharma (P.W.-10) had sufficient
time to make compliance with the second proviso of Section 42 of
the Act, 1985 by obtaining appropriate warrant for search of house
of the appellant but the same was not complied with. The conviction
against the appellant is bad in this respect that the witnesses of
search and seizure have turned hostile. Hence, it is based only on
the evidence of Sub-Inspector, Divya Sharma (P.W.-10), who is not
a reliable witness. She was not the Officer Incharge of the Police
Station as per the requirement of Section 55 of the Act, 1985 and
there is no such evidence present that the Officer Incharge of the
Police Station was on leave, when the articles seized were taken in
custody of the Investigation Officer. It is also submitted that no
evidence was brought to prove that the appellant was the owner of
the house and further the house from where the seizure was made
was shared by the other family members of the appellant.
Therefore, the appellant has merits in his favour and he has a good
case to argue in this appeal.
Reliance has been placed on the judgment of Supreme court
in case of State (NCT of Delhi) Narcotics Control Bureau Vs.
Lokesh Chadha, reported in (2021) 5 SCC 724, State of Punjab
Vs. Balbir Singh, reported in (1994) 3 SCC 299, State of
Rajasthan Vs. Jagraj Singh @ Hansa, reported in (2016) 11 SCC
687, in case of Noor Aga Vs. State of Punjab & Ors, reported in
(2008) 16 SCC 417, Dadu @ Tulsidas Vs. State of Maharashtra,
reported in (2000) 8 SCC 437 and State of Rajasthan Vs. Tara
Singh, reported in (2011) 11 SCC 559. It is prayed that the
sentence awarded to the appellant may be suspended and he may
be enlarged on bail.
Per contra, 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 here-in-above. I.O. strictly
complied with the provisions under Section 42 of the Act, 1985.
Section 55 of the Act, 1985 does not make a clear mention of the
person as to who shall be the in-charge of the police station, which
is defined under Section 2 (o) of the Code of Cr.P.C. according to
which, the Officer Incharge of a Police Station includes when the
Officer Incharge of the police station is absent from the station-
house or unable from illness or other cause to perform his duties,
the police officer present at the station-house who is next in rank to
such officer and is above the rank of constable or, when the State
Government so directs, any other police officer so present.
Therefore, the definition is quite exhaustive and includes the
investigation officer of the present case. Hence, there is no case of
non-compliance of Section 55 of the Act, 1985. The prosecution
has proved its case beyond all reasonable doubts. Hence, the
application be rejected.
We have heard the learned counsel for the parties and
perused the records of the trial Court.
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 Ram
Charan case has correctly interpreted the law relating to
the constitutional validity of the section and the judgment
of the Gujrat High Court in Ishwar Sinh M. Rajput case
cannot be held to be good law."
Similarly in case of State (NCT) Delhi Narcotics Control
Bureau (supra), the Supreme Court has observed that the High
Courts are not deprived of its power to suspend the sentence under
Section 389(1) of Cr.P.C. The High Court may do so for sufficient
reasons which must have a bearing on the public policy underlying
the incorporation of Section 37 of the N.D.P.S. Act. According to
this guidelines laid down in case of State (NCT of Delhi) Narcotics
Control Bureau (supra), even at the appellate stage, there is
relevance of Section 37 of the Act, 1985, which is required to be
taken into consideration.
In the present case, the independent witnesses of search
and seizure Atish @ Ashu Yadav (P.W.-1) and Ashraf Quraishi
(P.W.-2) are hostile witness, who have not supported the
prosecution case. The learned trial Court has placed whole reliance
on the deposition of the Sub-Inspector, Divya Sharma (P.W.-10)
and convicted the appellants. The evidence of Investigation Officer
has been challenged in this appeal regarding which submissions
have been made here-in-above. Hence, under these
circumstances, taking into consideration that the independent
witnesses of search and seizure have not supported the
prosecution case, which appears to be reasonable ground on which
the appellant is placing reliance, hence, this appears to be a
ground, which qualified under the restrictions under Section 37 of
the Act, 1985. Hence, we are of the considered opinion that it is a fit
case to suspend the sentence and release the appellant on bail.
Accordingly, I.A. No.1/2021, application for suspension of
sentence and grant of bail, is allowed.
Execution of substantive jail sentence imposed on appellant
shall remain suspended and he is directed to be released on bail on
his executing a personal bond for a sum Rs.50,000/- with one
surety for the like sum to the satisfaction of the trial Court for his
appearance before the Registry of this Court on 22nd March, 2022.
He 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 him by the said
Court, till the disposal of this appeal.
Certified copy as per rules.
Sd/- Sd/-
(R.C.S. Samant) (Arvind Singh Chandel)
Judge Judge
balram
