Jharkhand High Court
Md. Osama vs The State Of Jharkhand on 30 November, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 335 of 2017
Md. Osama --- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
---
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
---
For the Appellant : Mr. B.M. Tripathy, Sr. Advocate
Mr. Naveen Kr. Jaiswal, Advocate
For the State : Ms. Priya Shrestha, A.P.P.
11/30.11.2021 Heard Learned Senior Counsel for the appellant and learned
A.P.P. on the prayer for suspension of sentence of the appellant made through
I.A. No.1929 of 2020.
Sole appellant stands convicted for the offence punishable under
Section 21 of the NDPS Act vide impugned judgment of conviction and order
of sentence dated 06.02.2017 passed in N.D.P.S. Case No. 19 of 2015 by the
learned court of Additional Sessions Judge-V, Chatra and has been sentenced
to undergo R.I. for 10 years with a fine of Rs.1,00,000/- and a default
sentence.
Learned Senior Counsel for the appellant submits that as per the
case of the prosecution lodged by the Officer In-charge, Chatra Sadar P.S.
(P.W.4), on a confidential information passed on to him, Jamuna Bus
travelling from Chatra to Gaya was intercepted and searched and from the
possession of this appellant contraband weighing 506 gms in a plastic was
recovered in the presence of a Gazetted Officer P.W.3 and 2 independent
witnesses. Learned counsel for the appellant submits that P.W.1 and 2 seizure
list witnesses, though have identified their signatures but have been declared
hostile on the point of seizure. The Circle Officer, Chatra (P.W.3) says that
seizure was made in his presence, but P.W.5 and 7 to 11 who were members
of the raiding party, most of them have stated that recovery was not made in
their presence as they were standing outside the bus. It is submitted that the
contraband was kept for six days by the Police before sending to the F.S.L.
Delay in sending the contraband to the Forensic Science Laboratory dilutes
the chain of custody and a report of the F.S.L. based upon such sample lacks
authenticity. The report shows that the contraband was heroine (Ext.7). It is
submitted that the appellant has remained in custody since 5th March 2015 till
now except a period of two months when he was on provisional bail, that
means 6 years and 6 months of custody. Learned counsel for the appellant
states on instructions that the appellant does not have any criminal antecedent
or there was any previous conviction under the NDPS Act. Therefore, the
appellant may be enlarged on bail by suspending his sentence.
Learned A.P.P. has opposed the prayer. It is submitted that the
appellant was found in possession of contraband which is of commercial
quantity during search in the presence of a Gazetted Officer after compliance
of the mandatory provisions of Section 50 of the NDPS Act. The contraband
as per the FSL report has been found to be commonly known as Heroine i.e.,
'di acetyl morphine'. It is a highly addictive narcotic intoxicant. Therefore,
the appellant may not be enlarged on bail.
We have considered the submissions of learned counsel for the
parties and taken note of the materials on record relied upon by them
including the period of custody undergone by the appellants.
Having regard to the facts and circumstances noted above and
that the appellant has remained in custody for about 6 years and 6 months by
now against a sentence of 10 years, we are inclined to grant the privilege of
suspension of sentence to the appellant during pendency of the appeal.
Accordingly, appellant is directed to be released on bail on furnishing bail
bonds of Rs. 10,000/- (rupees ten thousand) with two sureties of the like
amount, each, to the satisfaction of learned Additional Sessions Judge-V,
Chatra in connection with NDPS Case No. 19 of 2015 subject to deposit of
Rs.50,000/- as the fine amount in the learned court below with the further
condition that the appellant as well as his bailors shall not change their
addresses and mobile numbers, if any, without prior permission of the learned
trial court and shall submit Aadhar Card at the time of his release. I.A.
No.1929/2020 stands disposed of.
(Aparesh Kumar Singh, J)
(Anubha Rawat Choudhary, J)
Shamim/
