Jharkhand High Court
Erik Mary vs The State Of Jharkhand on 4 May, 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
.......
CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Appellant : Mr. Arvind Kr. Choudhary, Advocate
For the State : Mr. Ravi Prakash, Spl. P.P.
I.A. No. 3215 of 2023
05/04.05.2023 Heard the learned counsel appearing on behalf of the appellant
no.2 Chotki Rao and the learned A.P.P. appearing on behalf of the State
on I.A. No. 3215 of 2023.
2. It is submitted by the learned defence counsel appearing on behalf
of the appellant No.2 Chotki Rao 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
judgment dated 20.09.2022 and order of sentence dated 24.09.2022
passed in N.D.P.S. Case No. 05 of 2021 arising out of Sitaramdera P.S.
Case No. 147 of 2020 by the court of learned Additional Special Judge,
NDPS, Jamshedpur whereby the appellants have been convicted for the
offence under Section 20(b)(ii)(B) and Section 21(a) of the NDPS Act
and have been sentenced to undergo R.I. for 5 years with a fine of
Rs.50,000/- each u/s 20(b)(ii)(B) and R.I. for 1 year with a fine of Rs.
10,000/- each u/s 21(a) of the NDPS Act and in default of payment of
fine, further R.I. for 6 months and 1 month under the respective sections.
3. It has been submitted by the learned counsel appearing on behalf
of the appellant no.2 that the learned trial court has failed to appreciate
the statement made by P.W.7 Sanjivan Oraon in his deposition, who was
the Investigating Officer of the case. The said P.W.7 has categorically
stated in para 8 of his deposition that he has not filled up the desired
columns of the seizure list i.e., column no.4 nor he has described from
where and how the seized contraband has been recovered from the
possession of the appellant in the column no. 5. Further, it has been
pointed out that the Investigating Officer has stated in para 9 that he did
not know about the F.S.L. report and as such, it appears patently that the
Investigating Officer (P.W.7) without coming to the conclusion that the
seized contraband was ganja and heroine submitted the charge-sheet as it
is admitted by him in his deposition that he did not go through the
contents of the FSL report. It has further been pointed out that the
appellant no.2 is a woman and she has been in jail from 04.11.2020 till
22.02.2021 in the pre-conviction period and thereafter from the date of
his conviction i.e., 20.09.2022 as on date in the post-conviction period
and therefore, she has spent more than 11 months in jail. It is further
pointed out that both the seizure list witnesses i.e., P.W.4 Krishna Namta
and P.W.5 Arik Swami Gawala have turned hostile and the Officer-In-
charge of the Police Station - Anjani Kumar, who has been examined as
P.W.6 and who is said to have seize the contraband from the possession
of appellant no.2 is also not gaining confidence in his deposition in
respect to measurement of the alleged ganja and heroine, which are said
to have been weighed as 1.8 Kg ganja ( which comes under the category
of intermediate quantity) and further 0.210 gm of heroine. As such, it is
urged on behalf of the appellant no.2 to enlarge her on bail during
pending of this appeal as this appeal is not likely to be taken up for
hearing in the near future.
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 appellant no.2 Chotki Rao along with appellant no.1 are
said to have been caught red handed with the ganja and heroine.
Although the seizure list witnesses have turned hostile but the Officer-
In-charge of the Police Station (P.W.6), who had seized the contraband
has supported the seizure and proved the seizure list and therefore, the
Investigating Officer (P.W.7) did not fill up the relevant columns in the
seizure list. Therefore, it does not cause prejudice to the defence of the
appellant no.2 and therefore, appellant no.2 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 no.2 and that she is a
woman, it is found just and proper to enlarge the appellant no.2 on bail.
Accordingly, the appellant no. 2 Chotki Rao 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 Special Judge, NDPS, Jamshedpur in connection
with N.D.P.S. Case No. 05 of 2021 arising out of Sitaramdera P.S. Case
No. 147 of 2020 subject to the condition as set out under Section 439 of
the Cr.P.C and further subject to the condition that the appellant no.2
shall deposit half of the fine amount, as awarded by the learned court
below under both count/ head which comes to Rs. 30,000/- (Rupees
Thirty Thousand only) without being prejudiced to her right of defence.
Appellant No.2 Chotki Rao is further directed to deposit the money
receipt by the next date positively.
7. I.A. No. 3215 of 2023 is allowed.
(Navneet Kumar, J.)
A.Mohanty
