Jharkhand High Court
Nitesh Ram vs The State Of Jharkhand on 3 May, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 37 of 2023
Nitesh Ram --- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
.......
CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Appellant : Mr. Mahesh Kumar Sinha (2), Advocate
For the State : Mrs. Shweta Singh, A.P.P.
I.A. No. 2764 of 2023
05/03.05.2023 Heard the learned counsel appearing on behalf of the appellant
and the learned A.P.P. appearing on behalf of the State on I.A. No. 2764
of 2023.
2. It is submitted by the learned defence counsel appearing on behalf
of the appellant that the instant interlocutory application has been filed
with a prayer to release the appellant on bail during pending of this
appeal. The instant appeal was preferred against the judgment of
conviction dated 19.11.2022 and order of sentence dated 22.11.2022
passed in Special Case No. 25/2009(N) / N.D.P.S. Case No. 25 of 2009
(arising out of Bariatu P.S. Case No. 280 of 2009) by the court of learned
Additional Judicial Commissioner-I cum Special Judge (N), Ranchi
whereby and where under the appellant has been convicted for the
offence registered under Section 20(b)(ii)(B) of the N.D.P.S. Act and
sentenced him to undergo R.I. for 4 years with a fine of Rs.10,000/- and
in default of payment of such amount of fine, he shall further undergo
S.I. for 3 months.
3. It has been submitted by the learned counsel appearing on behalf
of the appellant that the gist of the charges against the appellant was that
he along with co-accused Sunil Kumar Singh was travelling on a
motorcycle when the police intercepted and recovered 1.5 Kg of ganja
from the dicky of the said motorcycle. It has been pointed out that during
course of the trial no independent witness has been examined and there
was no field detection kit in order to find nature of contraband and to
weigh the contraband alleged to have been recovered from the dicky of
the motorcycle of the appellant upon which he was travelling and the
said contraband was taken to the office of Narcotics Control Bureau
(NCB) where P.W.2 Raj Kumar Sinha, who was an Intelligence Officer
of the NCB found the recovered contraband to be ganja through a
narcotics drugs detection kit which is not tenable in the eyes of law
because it was neither weighed before the appellant nor it was weighed
before any independent witness of the seizure list rather it was weighed
by P.W.2 who was the Intelligence Officer of the NCB behind the back
of the appellant in absence of any independent witness and thus the case
of the prosecution is vitiated.
4. Further, it has been pointed out that the learned Trial Court had
relied upon the prosecution witnesses blindly ignoring the manner and
mode of the seizure of the contraband and the seizure list was prepared
in contravention of the provision of Section 50 of the NDPS Act and no
independent seizure list witness has been examined being the eye
witness during course of the trial. It has further been pointed out that
P.W.3 Nawal Kishore Singh, an independent witness, who was running a
shop near the place of occurrence from where the seized contraband
alleged to have been recovered from the dicky of motorcycle, has not
supported the case of the prosecution. Further, it has also been pointed
out that appellant was all along on bail during course of the trial and
firstly arrested on 15.11.2009 and after 6 months he was released from
jail and in the post-conviction period he is in jail since 19.11.2022 and
thus he has already served substantial period of the sentence. It is also
submitted that since the appeal is not likely to be taken up for hearing in
the near future, appellant deserves to be enlarged on bail during
pendency of this appeal. It has further been pointed out by the learned
counsel appearing for the appellant that the appellant is ready to deposit
the fine amount without being prejudiced to the right of his defence.
4. On the other hand, learned A.P.P. appearing on behalf of the State
has opposed the contentions raised on behalf of the appellant and
submitted that the appellant was caught red handed along with ganja
weighing 1.5 Kg from the dicky of the bike upon which this appellant
along with co-accused was travelling and therefore, he does not deserve
to be enlarged on bail.
5. Having heard the learned counsel for the parties, perused the
record of the case.
6. In the light of the persuasive submission advanced on
behalf of the learned counsel for the appellant, it is found just and proper
to enlarge the appellant on bail. Accordingly, the appellant, named
above, is directed to be enlarged on bail on furnishing bail bond of
Rs.25,000/- (Rupees Twenty Five Thousand) with two sureties of the
like amount each to the satisfaction of learned Additional Judicial
Commissioner-I cum Spl. Judge (N), Ranchi in connection with Special
Case No. 25 of 2009(N) / NDPS Case No. 25 of 2009 (arising out of
Bariatu P.S. Case No. 280 of 2009) subject to the condition as set out
under Section 439 of the Cr.P.C and further subject to the condition that
the appellant shall deposit the entire fine amount of Rs. 10,000/- (Rupees
Ten Thousand only) as awarded by the learned court below without
being prejudiced to his right of defence. I.A. No. 2764 of 2023 is
disposed of.
7. This criminal appeal is admitted for hearing.
8. Let the instant criminal appeal along with Criminal Appeal (SJ)
No 28 of 2023 be listed under the heading for hearing in seriatim.
(Navneet Kumar, J.)
A.Mohanty
