Jharkhand High Court
Erik Mary vs The State Of Jharkhand on 18 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 810 of 2022
1. Erik Mary
2. Chotki Rao ..... ...... Appellants
Versus
The State of Jharkhand .... .... Respondent
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Petitioner : Mr. Rohit Agarwal, Advocate
For the State : Mr. Ravi Prakash, Spl.P.P.
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th
Order No.06 /Dated: 18 August, 2023
I.A. No.5374 of 2023
Learned counsel for the appellants, Mr. Rohit Agarwal and learned
counsel for the State, Mr. Ravi Prakash are present.
2. This Interlocutory Application has been preferred with prayer to
suspend the sentence passed by the learned Court below and to release the
appellants on bail during pendency of this Criminal Appeal.
3. Learned counsel for the appellants has submitted that this Criminal
Appeal has been preferred against the judgment of conviction dated
20.09.2022 and the order of sentence dated 24.09.2022 passed by the learned
Additional Special Judge (NDPS), (East Singhbhum), Jamshedpur in N.D.P.S.
Case No.05 of 2021 arising out of Sitaramdera P.S. Case No. 147 of 2020,
whereby the appellants were found guilty for the offence under Section
20(b)(ii)(B) of the N.D.P.S. Act and sentenced to undergo R.I. for five years
with fine of Rs.50,000/-, in default of payment of fine amount, Imprisonment
for six months, under Section 21(a) of the N.D.P.S. Act and sentenced to
undergo R.I. for one year with a fine of Rs.10,000/-, in default of payment of
fine, further Imprisonment for one month and both the sentences were directed
to run concurrently. The appellants were further to execute a personal bond of
Rs.1,00,000/- to abstain them for commission of any offence under the N.D.P.S.
Act for a period of two years.
4. Learned counsel for the appellants has further submitted that the
impugned judgment of conviction and the order of sentence passed by the
learned Court below is not based on the proper appreciation of the evidence on
record. The independent witness of seizure memo i.e. P.W.-4, Krishna Namta
and P.W.-5, Arik Swami Gawala both have not proved the seizure memo for
the recovered articles. All other witnesses are the police personnel. It is further
submitted that during trial only the Ganja was produced and brown sugar was
not produced at the time of trial and even the Malkhana Register was also not
proved during the trial.
5. The learned Spl.P.P. has vehemently opposed the contentions made
by the learned counsel for the petitioner and contended that the impugned
judgment of conviction and the order of sentence has rightly been passed by
the learned Court below. The contraband was produced during trial and the
same was proved as a material exhibit, even the FSL report also confirms that
the recovered articles were Ganja and Brown Sugar.
6. From perusal of the prosecution story, it is found that the informant
along with police force had carried out raid at the house of the accused persons
after having received secret information and both the accused persons were
apprehended from that place. From the possession of the appellant No.2,
namely, Chotki Rao, recovered a plastic bag containing therein 2 Kg. Ganja
and two pouch of Brown Sugar and it was disclosed by Chotki Rao that she
along with the appellant No.1, namely, Erik Mary jointly selling the Ganja and
Brown Sugar. The weight of recovered Ganja was 1.7 Kg. and the Brown Sugar
was 0.210 G.
7. From perusal of the impugned judgment of conviction, it is found
that P.W.-4, Krishna Namta and P.W.-5, Arik Swami Gawala both are the
independent witnesses of seizure memo. Though both the witnesses have
identified their signature on the seizure memo, yet in course of examination,
both the witnesses have stated that their signature had been taken on the blank
paper and they have no knowledge in regard to same. As such, from the
testimony of these two independent witnesses of the seizure memo is not
proved; but the same is proved from the testimony of other police personnel.
8. From the testimony of P.W.-7, Sanjivan Oraon, Investigation Officer,
it is found that neither the contraband was produced by him in the Court nor
the Malkhana Register was produced to prove the same. P.W.-8, Tinku Kumar
Verma was also examined and this witness has produced a box of Ganja, which
is marked as material Exhibit-1 and the Ganja, which was marked as material
exhibit-2 but no brown sugar was produced and even Malkhana Register was
also not produced and proved before the learned trial Court.
In view of the submissions made and the materials available on
record, it is fit case for suspension of sentence.
9. Accordingly, I.A. No. 5374 of 2023 is allowed.
10. The sentence passed by the learned Court below shall remain
suspended during pendency of this criminal appeal.
11. In consequence thereof, the appellants, namely, Erik Mary and Chotki
Rao are directed to be released on bail on furnishing bail bond of Rs.40,000/-
(Rupees Forty Thousands) each with two sureties of the like amount each to the
satisfaction of learned Additional Special Judge (NDPS), (East Singhbhum),
Jamshedpur in connection with N.D.P.S. Case No.05 of 2021 arising out of
Sitaramdera P.S. Case No. 147 of 2020.
Cr. Appeal (SJ) No. 810 of 2022
List this case for hearing as per its seriatim.
(Subhash Chand, J.)
Madhav/-
