Rinku Badhai vs State Of Chhattisgarh
2022 Latest Caselaw 4810 Chatt

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             HIGH COURT OF CHHATTISGARH, BILASPUR
                          Order Sheet

                              CRA No. 835 of 2021

1. Rinku Badhai, S/o Santosh Badhai, Aged About 28 Years,

2. Ankit Gupta, S/o Satyaprakash Gupta, Aged About 20 Years,

  Both Appellant Nos. 1& 2 R/o Village Singodi, Thana Vijraygarh, District Katni
  (M.P.).

3. Ramanand, S/o Fagulal, Aged About 35 Years, R/o Village Manikpur, Thana
   Nagaur, District- Satna (M.P.).                         ---- Appellants

                                    Versus

 State of Chhattisgarh, Through - Station House Officer, Police Station - Basna,
  District - Mahasamund, Chhattisgarh.                         ---- Respondent

27.07.2022 Mr. Vikash Pradhan, counsel for the appellants.

Ms. Shivali Dubey, P.L. for the State/respondent.

Heard on I.A. No.01/2021, application for suspension of sentence

and grant of bail.

The appellants have been convicted and sentenced by the

judgment of conviction and order of sentence dated 30.07.2021 passed

in Special Criminal Case No 15/2017 by the Special Judge (NDPS Act),

Saraipali, District- Mahasamund (C.G.) as under :-

Conviction Sentences U/s. 20 (b) (ii) (c) of NDPS Act R.I. for 10 years with fine of Rs. 1,00,000/- and default in payment of fine amount, additional R.I. for 1 year.

Learned counsel for the appellants submits that there is no reliable

evidence against the present appellants to involve them in this case,

essential ingredient of the offence for convicting the appellants are

missing. It is further submitted that provision of Section 42 of NDPS Act

has not been complied with by the police officials. It is evident from the

statements of PW/3 Driver- Rupanand Hota & PW/11 hemlal Nag,

Sub-Inspector that the police party have knowledge about the

transportation of the contraband Ganja in a vehicle but the secret

information with regard to illegal transportation of Ganja was not sent to

the higher authority. He placed reliance on a judgment of the Hon'ble

Supreme Court in the matters of Karnal Singh Vs. State of Haryana,

(2009) 8 SCC 539; State of Rajasthan vs Jag Raj Singh @ Hansa

(2016) 11 SCC 687 & Boota Singh vs The State Of Haryana reported

in AIR online 2021 SC 198. He further submits that the mandatory

provision of Section 55 of the NDPS Act has also not been complied as

the seized article was not taken by the SHO and there is nothing on

record to show that SHO has received the said article in his custody. In

order to buttress his submission he again placed reliance on the

judgment of Division Bench of this Court in the matters of State of

Chhattisgarh Vs. Devendra Singh, passed in CRMP No. 858 of 2021,

on 14.06.2022 & Rakesh Chandraka Vs. State of Chhattisgarh,

passed in CR.A. No. 973 of 2021 on 04/01/2022. He further submits

that the standing order also not complied with. He again submitted that

the appellants are in jail since 30.07.2021 and they were on bail during

trial, they have not misused the liberty and disposal of this appeal is

likely to take some time, therefore, the appellants may be released on

bail.

On the other hand, learned counsel for the State opposes bail

application and submits that question of non-compliance of Section 42

of NDPS Act is not applicable in this case because during the search of

the said vehicle there was a chance recovery of psychotropic

substance, hence, it is a case of chance recovery and she relied upon

the statements of PW/4, PW/5 and PW/6 to prove that the case was a

chance recovery. Therefore, findings of the trial Court to this effect is

proper. She further submits that Section 55 of NDPS Act is also

appears to be complied with. She lastly submits that since the

appellants are resident of Madhya Pradesh, if they are enlarged on bail,

they may be directed to furnish local surety as well.

Heard learned counsel for the parties and perused the record.

Considering the facts & circumstances of the case, the evidence

brought on record, the statements of PW/3, PW/8 & PW/11, the

detention period of the appellants, who are 20, 28 & 35 years old, they

were on bail during trial and they did not misuse the liberty granted to

them and looking to the observations made by the Hon'ble Supreme

Court in the matters of Karnal Singh (supra) & State of Rajasthan

(supra) and orders of Division Bench of this Court passed in CRMP No.

858 of 2021 & CRA No. 973 of 2021, the application (I.A. No.1/2021) is

allowed.

It is directed that the execution of substantive jail sentence

imposed upon the appellants shall remain suspended during the

pendency of this appeal and they shall be released on bail on their

furnishing a personal bond in the sum of Rs.25,000/- each with one

local surety each to the satisfaction of the trial Court. They shall appear

before the Registry of this Court on 29.09.2022 and thereafter appear

before the trial Court on a date to be given by the Registry and

thereafter continue to appear before the trial Court on all such dates as

are given to them by the said Court till disposal of this appeal.

Learned counsel for the appellant lastly prays for reducing the

fine amount i.e. Rs. 1,00,000/- imposed by the trial Court as the

appellant Nos. 1 & 3 are poor and they are unable to pay the fine

amount.

Prayer allowed.

The 50% fine amount so far as appellant Nos. 1 & 3 are

concerned, shall remain suspended during the pendency of this appeal.

List the case for final hearing.

              Certified copy as per                        Sd/-


                                                    (Sachin Singh Rajput)
                                                            Judge



Nadim