Jharkhand High Court
Ramcharan Ghosal @ Ram Charan ... vs The State Of Jharkhand on 17 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 582 of 2023
1.Ramcharan Ghosal @ Ram Charan Ghoshal
2.Hira Rani Ghoshal @ Hira Rani Ghosal @ Lakhirani Ghoshal @
Lakhirani Ghoshal --- --- Appellants
Versus
The State of Jharkhand --- --- Respondent
.......
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Appellant : Mr. A.K. Sahani, Advocate
For the State : Mr. Ravi Prakash, Spl.P.P.
Order No.08/ Dated 17th August, 2023
I.A. No. 3721 of 2023
The instant interlocutory application has been filed on behalf of
the appellants for suspension of sentence in connection with judgment
dated 03.04.2023 and order of sentence dated 05.04.2023 passed by the
learned Sessions Judge, Bokaro in N.D.P.S. Case No. 02 of 2021 arising
out of Siyaljori P.S. Case No. 05 of 2021 whereby the appellants have
been convicted for the offence punishable under Section 20(b)(ii) (B) of
the N.D.P.S. Act and have been sentenced to undergo R.I. for 10 years
with a fine of Rs.1,00,000/- each and a default sentence.
2. Learned counsel for the appellants has submitted that it is case
where the falsity of implication of the appellants is very much apparent
from the testimony of P.W.1, PW.2 and P.W.3, who have deposed at
paragraph no. 10, paragraph No. 7 and paragraph no. 15 respectively that
seizure was made in the police station. A submission has been made that
only P.W.6 the Dy.S.P. has deposed in course of trial that the seizure was
prepared at the place of occurrence. Learned counsel for the appellants in
the aforesaid premises has made submission that by taking together the
testimonies of P.W.1, P.W.2, P.W.3 and P.W.6, it would be evident that
there is contradiction in the testimonies so far as the place of search and
seizure is concerned.
3. Further submission has been made that procedure has been laid
down under the statute as under Section 52-A(4) that the samples which
has been taken and certified by the Magistrate in compliance of sub
Section (2) and (3), as per the judgment rendered in the case of Union
of India Vrs. Mohan Lal & another reported in (2016) 3 SCC 379, can
only be considered to be primary evidence for the purpose of trial, but
the same is lacking herein, as would appear from the testimony of P.W.1,
2, 3 and 6. Therefore, the prosecution has miserably failed to prove its
case beyond all shadow of reasonable doubts, if the testimonies of the
witnesses taken together and further the procedure as laid down under
the statutory command has also not been followed.
4. While on the other hand Mr. Ravi Prakash learned Special P.P.,
who has filed an affidavit in objection in terms of the order dated
03.08.2023, has submitted that it is incorrect on the part of the appellant
to take the ground that prosecution has failed to establish the case
beyond all shadow of reasonable doubts. According to him all the
prosecution witnesses have consistently supported the prosecution
version regarding the search and seizure. Further, the seized articles have
been sent to the Forensic Science Laboratory where from the report has
come in corroboration with the prosecution version about the materials
so seized is contraband. The submission in the aforesaid premises has
been made that in such circumstances the learned Trial Court has
convicted the appellants, which cannot be said to suffer from error and in
that view of the matter, it is not a case where sentence is fit to be
suspended.
5. We have heard the learned counsel for the parties; perused the
findings recorded by the learned Court in the impugned order as also the
materials available on the lower court records which have been called by
this Court vide order dated 12.07.2023.
6. It appears from the materials available on record that P.W.1 in
paragraph 10 has stated that seizure was prepared in the police station.
The aforesaid version has been corroborated by P.W.2 and P.W.3 as
would appear from paragraph 7 and paragraph 15 respectively of their
testimonies and in addition thereto, seizure was signed by them in the
police station. However, P.W.6 the Dy.S.P. has deposed that seizure has
been made at the place of occurrence.
7. It thus, appears that there is contradiction in the testimony of the
prosecution witnesses. Further, it appears that procedure laid down under
the statutory command as under Section 52-A(2),(3),(4) of the N.D.P.S
Act, 1985 is lacking, which fact is evident from documents available on
record. The learned Spl.P.P. has also not disputed the same.
8. This Court in the aforesaid premises is of the view that appellants
have been able to make out reasonable grounds for suspension of
sentence.
9. Accordingly, the appellants, above named, are directed to be
released on bail on furnishing bail bonds of Rs.25,000/- (Rupees Twenty
Five Thousand only) each with two sureties of the like amount each to
the satisfaction of the learned Sessions Judge, Bokaro in connection with
N.D.P.S. Case No. 02 of 2021 arising out of Siyaljori P.S. Case No. 05 of
2021, subject to the conditions that the appellants will cooperate in the
trial and shall appear on each and every date before the Trial Court,
failing which, the learned Trial Court will be at liberty to cancel the bail
bond.
10. I.A. No.3721 of 2023 is allowed.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
A.Mohanty
