Bahadur Singh vs The State Of Jharkhand
2023 Latest Caselaw 3295 Jhar

                                     1


      IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Criminal Appeal (DB) No. 689 of 2023
1.Bahadur Singh, aged about 40 years, S/o- Mada Singh,
  R/o-Village-Lohkhera, P.O. + P.S.- Langwar, Dist-Sanruru (Punjab)
2.Kulwant Singh, aged about 35 years, son of Deyal Singh,
  resident of village Ratouk, PO+PS-Langwar, District-Sangruru (Punjab)
                                                          --- --- Appellants
                                Versus
The State of Jharkhand                                   --- --- Respondent
                                With
              Criminal Appeal (SJ) No. 212 of 2023
1.Sunil Kumar Singh @ Sunil Singh, aged about 35 years.
2.Sandeep Kumar Singh, Aged about 30 years,
       Both sons of Yashwant Singh, resident of village Bakchumba,
       PO + PS-Rajpur District-Chatra
                                                         --- --- Appellants
                                Versus
The State of Jharkhand                                   --- --- Respondent

                                         .......

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR

For the Appellants : Mr. R.S. Mazumdar, Sr. Advocate : Mr. Abhishek Prasad, Advocate For the State : Mr. Ravi Prakash, Spl.P.P.

Order No.08/ Dated 31st August, 2023

Heard the learned counsel for the Appellants and the learned Spl.P.P. representing the State of Jharkhand in both the aforesaid appeals.

I.A. No. 4153 of 2023 in Criminal Appeal (DB) No. 689 of 2023 & I.A. No. 3453 of 2023 in Criminal Appeal (SJ) No. 212 of 2023

2. I.A. No. 4153 of 2023 in Criminal Appeal (DB) No. 689 of 2023 and I.A. No. 3453 of 2023 in Criminal Appeal (SJ) No. 212 of 2023 are taken up together with consent of both the parties in view of the submissions advanced on behalf of the appellants that both the aforesaid appeals are directed against the common judgment of

conviction and order of sentence.

3. Both the interlocutory applications have been preferred by the appellants for suspending their respective sentences during pending of their respective appeals which are directed against the common judgment of conviction dated 31.03.2023 and order of sentence dated 05.04.2023 passed in NDPS Case No. 04 of 2022 arising out of Itkhori P.S. Case No. 67 of 2021 by the court of learned Sessions Judge, Chatra whereby and where under both the appellants of Cr. Appeal (D.B.) No.689 of 2023 have been convicted for the offence punishable under Section 15(C) of the NDPS Act and have been sentenced to undergo R.I. for Ten years with a fine of Rs.1,00,000/- (Rupees One Lakh only) and in default of payment of fine, further directed to undergo one year Simple Imprisonment and the both the appellants of Cr. Appeal (S.J.) No.212 of 2023 have been convicted for the offence punishable under section 18 (C) of the NDPS Act and have been sentenced to undergo R.I. for three and half years with a fine of Rs.15,000.00 ( Rupees fifteen thousand only) and in default of payment of fine, further directed to undergo Simple Imprisonment for six months.

4. The learned Counsels appearing on behalf of the appellants in both the appeals submitted that the charges leveled against the appellants were that both the appellants of Cr. Appeal (D.B.) No.689 of 2023 were found in possession of 2.56 quintals of 'Doda' (Poppy Straw) and both the appellants of Cr. Appeal (S.J.) No.212 of 2023 were found in possession of 250 grams of Opium but the prosecution miserably failed to prove the same in absence of sufficient materials to attract the offences punishable under Section 15 (c) and 18 (c) of the NDPS Act against the appellants in both the appeals and the learned Trial Court has passed the judgment of conviction and order of sentence mechanically without proper application of judicious mind.

5. The learned Defence Counsels appearing on behalf of the appellants pointed out the depositions of P.W.1 Jagnath Yadav, who is said to be the member of the raiding party, has stated that the said contraband (2.56 quintals of doda ) was weighed at the spot by the informant P.W.2 (Ankit Kumar Jha) and P.W.11 Dy.S.P. Kedarnath

Ram had come to the police station at 8.00 a.m. and the seizure list was prepared at the police station and the sample of the alleged contrabands has not been taken at the place of occurrence and P.W.1 also stated that he was not authorized by the Government as per NDPS Act.

It has further been submitted on behalf of the appellants that P.W.2 being the informant of the case stated as per FIR that the Dy.S.P. had inspected the said contraband from the D.D. kit and seizure list was prepared by Girendra Kumar but in the cross- examination he stated that he had neither received the secret information of illegal transportation of the contraband nor he had informed to any superior officer and further stated that Lalan Kumar Dubey had weighed the seized articles but he had not put his signature on the seized article.

6. It has further been contended on behalf of the appellants that P.W.3 Pradeep Prasad Mehta, who was the driver and member of the raiding party had stated that he had no knowledge about the secret information and he was just standing on the side of the vehicle and saw accused persons in the police station and further P.W.4 Pawan Kumar, a constable and member of the raiding party stated in para 14 that the informant P.W.2 was not present at the place of occurrence and in para 16 he has also stated that at the place of occurrence no Magistrate was present nor any article was sealed. Further, it has been submitted on behalf of the appellants that P.W.5, Girendra Rajak, Assistant Constable and member of the raiding could not identify the accused persons at the time of recording his deposition in the trial and in the cross examination he had stated that on the date of occurrence the Dy.S.P. had come to the police station after the search and arrest had been affected and also stated that articles were not sealed at the place of occurrence nor the seizure list was prepared at the place of occurrence.

7. Further, it has been submitted on behalf of the appellants that P.W.7 Ganjhiya Oraon was the seizure list witness and in para 3 of his deposition he stated that nothing was seized in his presence and his statement was not recorded by the police. It has further been submitted that P.W.8 Gopal Paswan, being a constable and the

member of the raiding party stated in para 14 of his deposition that the informant P.W.2 was not present at the place of occurrence and P.W.9 Lalan Kumar Dubey and P.W.10 Sudhir Kumar Singh (seizure list witness) have stated that the informant P.W.2 was not present at the place of occurrence and further P.W.10 stated that he had put his signature in the seizure list in the police station but he had not seized any article from any one and P.W.11 Kedarnath Ram, the Dy.S.P. stated that no prior information about the occurrence was given to him nor even after the occurrence and he further stated that he had not given any notice under Section 50 of the NDPS Act and the seizure list was prepared at the police station. It has further been submitted that P.W.12 Radhesyham Tiwari, another member of the raiding party stated that the F.I.R. was instituted by Niranjan Kumar Mishra and he met with the Dy.S.P. in the police station.

8. In view of the aforesaid depositions of the witnesses examined on behalf of the prosecution, it is submitted by the learned defence counsels appearing on behalf of the appellants of both aforesaid appeals that the learned Trial Court ignored the aforesaid discrepancies as found in the depositions of prosecution witnesses and hence the charges levelled against the appellants for the offence punishable under Section 15(c) and 18(c) of the NDPS Act are not proved at all. Further, it has been submitted that in view of the aforesaid deposition of the witnesses, it is apparent that Section 42 and 50 of the NDPS Act has not been followed in the present case.

9. The learned counsels for the appellants relied upon rulings of the Hon'ble Supreme Court in the case of Sanjeet Kumar Singh @ Munna Kumar Singh Vrs. State of Chhattisgarh, [2022 SCC Online SC 1117]; Naresh Kumar @ Nitu Vrs. State of Himachal Pradesh [(2017) 15 SCC 684] in support of their contentions and submitted that appellants deserve to be enlarged on bail by suspending their respective order of sentences.

10. On the other hand, the learned Spl.P.P. vehemently opposed the contentions raised on behalf of the appellants and submitted that there are glaring evidences in order to substantiate the charges levelled against both the appellants of Cr. Appeal (D.B.) No.689 of 2023 (in whose possession 2.56 quintals of 'Doda (Poppy Straw) was found)

and further also against both the appellants of Cr. Appeal (S.J.) No.212 of 2023 ( in whose in possession 250 grams of Opium was found) and have been rightly convicted under Sections15(C) and 18(C) of the NDPS Act respectively.

11. The learned Spl.P.P. submitted that all the four appellants of the aforesaid two appeals, namely Bahadur Singh and Kulwant Singh of Cr. Appeal (D.B.) No.689 of 2023 and Sunil Kumar Singh @ Sunil Singh & Sandeep Kumar Singh of Cr. Appeal (SJ) No. 212 of 2023 have been caught red handed with huge quantity of contraband namely 'Doda'(poppy straw) weighing 256 Kg in 9 sacks and cash of Rs. 2,13,500/- and 250 gm of opium respectively establishing that all the four appellants were running drug rackets. It has further been pointed out by learned Spl. P.P. that the two appellants Bahadur Singh and Kulwant Singh carrying 256 Kg of 'Doda' (poppy straw) were travelling in a Mini Truck bearing Registration No. PB-13-AL-9330 whereas the other two appellants Sunil Kumar Singh @ Sunil Singh & Sandeep Kumar Singh carrying 250 gm of opium were travelling in a white colour bolero vehicle bearing registration no. JH0-2-AG 7385 from Chatra and both the aforesaid vehicles were coming together one after the another.

12. The learned Spl. P.P. has further pointed out from the depositions of P.W.1, P.W.3, P.W.4, P.W.5, P.W.8, P.W.9, P.W.12 and P.W.13, who were members of the raiding party that all of them have supported the recovery of narcotic substances i.e., 256 kg of poppy straw in the Mini Truck bearing Registration No. PB-13-AL-9330 from the possession of Bahadur Singh and Kulwant Singh and recovery of 250 gm of opium from the possession of appellant Sunil Kumar Singh @Sunil Singh and Sandeep Singh travelling in the bolero vehicle bearing registration no. JH-02-AG-7385. The learned Spl.P.P. has referred to the depositions of the P.W.2 informant, who has supported the recovery of 'Doda' (poppy straw) from the conscious possession of both the appellants of Cr. Appeal (DB) No. 689 of 2023 and 250 gm of opium from the conscious possession of Sunil Kumar Singh & Sandeep Kumar Singh of Criminal Appeal(SJ) No. 212 of 2023 on the spot and further it has also been pointed out by learned Spl.P.P. that P.W.7 and P.W.10 are the seizure list witnesses

and they have also identified their signature on the seizure list as evident from their depositions in the examination in chief and no contradiction is found in their cross examination considering their statements in a holistic manner.

13. Further, learned Spl.P.P. has also relied upon deposition of P.W.6 Khusboo Rani who is the Investigating Officer of the case and has supported the case of the prosecution without any contradictions and inconsistencies or flaws in the investigation of the case. It has further been pointed out by referring to the depositions of P.W.11, Dy.S.P. , who was the member of the raiding party and P.W.4, who has produced the seized materials before the Court for sampling and sending the same to the State Forensic Science Laboratory for its scientific examination wherein it has been categorically established from the FSL report i.e. Ext.6 i.e., the 2.5 quintals of contraband found from the possession of the appellants of Cr. Appeal (DB) No 689 of 2023 was 'Doda' and 250 gm of contraband found from the possession of the appellants of Cr. Appeal (SJ) No. 212 of 2023 was opium.

14. It has further been contended on behalf of the learned Spl.P.P. that the process of sampling and sealing of the aforesaid contrabands as seized from the respective appellants has been done before the court as evident from Ext. 4 and Ext.5 from which it is manifest that the aforesaid contrabands as found from the possession of the appellants of both the appeals Cr. Appeal (DB) No. 689 of 2023 and Cr. Appeal (SJ) No. 212 of 2023 have been properly seized, sealed, samples taken and sent to the FSL where the possession of poppy straw weighing 2.56 quintals and 250 gm of opium from the respective appellants gets proved. It has further been pointed out by the learned Spl.P.P. that aforesaid contrabands have also been substantiated by the seizure list Ex.2 and 3 and material exhibits as Material Exhibit-II and Material Exhibit -III to XI therefore, it is urged on behalf of the State that it is a case of direct evidence where both the appellants of Cr. Appeal (DB) No. 689 of 2023 and Cr. Appeal(SJ) No. 212 of 2023 have been found with unlawful possession of narcotic drugs i.e., 2.56 quintal of 'Doda'(poppy straw) and 250 gm of opium respectively.

15. Further it has been pointed out by the learned Spl.P.P. from the depositions of P.W.13 Niranjan Kumar Mishra who was the Officer In-charge of the Police Station and P.W.14 Mantu Kumar, who has proved the material exhibits including the Opium, poppy straw and other articles recovered from the possession of the appellants of both the appeals.

16. In support of his contention, learned Spl.P.P. has relied upon rulings of the Hon'ble Supreme Court in the case of The State (GNCT of Delhi) Narcotics Control Bureau Vrs. Lokesh Chadha [ AIR 2021 SC 1436] and in the case of Rizwan Khan Vrs. The State of Chhattisgarh [AIR 2020 SC 4297]. Therefore, it is urged that the appellant do not deserve to be enlarged on bail by suspending their order of sentences.

17. Having heard the learned counsel for the parties, perused the entire materials including the lower court records consisting of entire evidences adduced on behalf of the parties.

18. In the backdrop of the persuasive submissions advanced on behalf of the State by the learned Spl.P.P., it is found that there are ample evidences to substantiate the charges levelled against the two appellants namely Bahadur Singh and Kulwant Singh of Cr. Appeal (DB) No. 689 of 2023 and appellants namely Sunil Kumar Singh @ Sunil Singh & Sandeep Kumar Singh of Cr. Appeal(SJ) No. 212 of 2023 having been convicted for the offence punishable under Section 15(c) of the NDPS Act for unlawful possession of huge quantity of 'Doda' (poppy straw) i.e., 2.56 quintal and 18(c) of the NDPS Act for unlawful possession of 250 gm of opium respectively.

19. It further appears from the submission of the learned Spl.P.P. based on the testimonies of P.W.1, 2, 3, 4, 5, 6, 8, 9, 11, 12, 13 and 14, the documentary evidences including the seizure lists, sampling and forwarding the same for FSL test and the scientific FSL report i.e., Ext. 1, 2, 3,4,5 and 6 and the Material Exhibit-I, II and III to XI where it is found that there are cogent evidences to substantiate the charges levelled against the appellants of both the appeals who were four in numbers and travelling in two vehicles i.e., Mini Truck bearing Registration No. PB-13-AL-9330 and white colour bolero vehicle bearing registration no. JH-02-AG 7385 and both the said vehicles

were coming back to back and when intercepted by the Police the appellants Bahadur Singh and Kulwant Singh were found in possession of commercial quantity of poppy straw weighing 2.56 quintals in the said mini truck and the appellant Sunil Kumar Singh @ Sunil Kumar and Sandeep Kumar Singh were found in possession of 250 gm of opium in the said Bolero as corroborated by the glaring evidences as pointed out by the learned Spl P.P. herein above and hence this Court is of the considered view that it is not just and fair to enlarge the appellants of Cr. Appeal(DB) No. 689 of 2023 and Cr. Appeal (SJ) No. 212 of 2023 on bail by suspending their respective order of sentences.

20. Accordingly, the prayer of the appellants of both the aforesaid appeal to release them on bail by suspending their respective order of sentences is hereby rejected.

21. Accordingly, I.A. No. 4153 of 2023 in Cr. Appeal (DB) No.689 of 2023 and I.A. No. 3453 of 2023 in Cr. Appeal (SJ) No. 212 of 2023 are rejected.

22. It is made clear that the instant order rejecting the bail shall not prejudice the case of the appellants while hearing of the appeals regarding conviction and sentence of the appellants on merits.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.) A.Mohanty