Jharkhand High Court
Radhey Shyam Gupta @ Radheshyam ... vs The State Of Jharkhand on 20 November, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No. 11549 of 2021
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Radhey Shyam Gupta @ Radheshyam Gupta @ Radhe Shyam
Gupta ... Petitioner
Versus
The State of Jharkhand ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate
For the State : Mr. Ravi Prakash, Spl. P.P.
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Order No.04 Dated- 20.11.2021
Heard the parties through video conferencing.
The petitioner has moved this Court for grant of bail in
connection with Saraidhela P.S. Case No.215 of 2020 (Special N.D.P.S.
Case No.06 of 2020) registered under sections 20/21/27A of N.D.P.S.
Act.
The learned Senior Advocate appearing for the petitioner
submits that earlier the prayer for bail of the petitioner was rejected
vide order dated 19.02.2021 in B.A. No.1358 of 2021 but the fresh
ground is that so far eight out of eleven witnesses have been
examined. It is next submitted that the police officers who were
involved in seizure of the ganja from the house of the petitioner in his
presence have supported the case of the prosecution but P.W.8 who is
the witness of seizure though in his examination-in-chief has stated
that on 04.10.2020 at 19:20 hours seizure list was prepared in the
house of the petitioner and he put his signature and identified the
same and the same has been marked Ext.2/1 but in his cross-
examination, he has stated that he signed in the police station and
when his signed the paper, the paper was blank and he has no
personal knowledge about the case. Learned Senior Advocate
appearing for the petitioner relied upon the judgment of Hon'ble
Supreme Court of India in the case of Naresh Kumar alias Nitu vs.
State of Himachal Pradesh in Criminal Appeal No.1053 of 2016
dated 27.07.2017 wherein, the Hon'ble Supreme Court of India has
observed in paragraph no.8 as under:-
"8. In a case of sudden recovery, independent witness
may not be available. But if an independent witness is
available, and the prosecution initially seeks to rely
upon him, it cannot suddenly discard the witness
because it finds him inconvenient, and place reliance
upon police witnesses only. In the stringent nature of
the provisions of the Act, the reverse burden of proof,
the presumption of culpability under Section 35, and
the presumption against the accused under Section 54,
any reliance upon Section 114 of Evidence Act in the
facts of the present case, can only be at the risk of a fair
trial to the accused. Karamjit Singh vs. State (Delhi
Administration), AIR 2003 SC 1311, is distinguishable
on its facts as independent witness had refused to sign
because of fear of terrorists. Likewise S.
Jeevananthanan vs. State, 2004 (5) SCC 230, also
does not appear to be a case where independent
witnesses were available."
It is next submitted that the petitioner has been in custody for a
considerable period of time. Hence, it is submitted that the petitioner
be admitted to bail.
The learned Spl. P.P. on the other hand vehemently opposes the
prayer for bail and submits that the facts of this case is entirely
different from the facts of Naresh Kumar alias Nitu vs. State of
Himachal Pradesh (supra) as in this case the independent witnesses
have supported the case of prosecution of course he has made a
departure in his cross-examination by saying that when he signed the
seizure list the same was blank. It is next submitted that admittedly,
the police officers who were involved in raiding and seizure of ganja
in commercial quantity from the house of the petitioner has
supported the case of the prosecution and it is a settled principle of
law that the testimony of police personnel ought not be displayed
only on the ground that there police personnel. It is then submitted
that the P.W.8 has also supported the case of the prosecution so far
his signing the seizure list prepared in the house of the petitioner and
merely because, he has stated in his cross-examination that he put his
signature in the police station and the paper was blank at the time of
putting his signature by itself will not be sufficient ground to release
the petitioner on bail. It is next submitted that keeping in view the
fact that the ganja seized in this case is in commercial quantity hence,
the rigors of Section 37 of N.D.P.S. Act is attracted in this case and in
the absence of any material to suggest that the petitioner is not guilty
of the allegations made against him and that there is no chance of the
petitioner being involved in any offence while on bail, the petitioner
ought not to be admitted to bail.
Considering the serious nature of allegation against the
petitioner of being involved in possession of ganja of much more than
that of commercial quantity and in the absence of any material to
suggest that the petitioner is not guilty of the allegations made
against him or that there is no chance of the petitioner being involved
in any offence while on bail, this Court is of the considered view that
this is not a fit case where the above named petitioner be admitted to
bail. Accordingly, the prayer for bail of the above named petitioner is
rejected.
(Anil Kumar Choudhary, J.)
Sonu-Gunjan/
