Jharkhand High Court
Rajen Hassa Purty vs The State Of Jharkhand on 5 October, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 531 of 2023
Rajen Hassa Purty, S/o Late Johan Hassa Purty, aged
about 55 years R/o Village- Damrai, PO & PS- Murhu,
District-Khunti (Jharkhand)
--- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
.......
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Appellant : Mr. Shailesh Poddar, Advocate
For the State : Mr. Shailendra Kr. Tiwari, A.P.P.
Order No.06/ Dated 5th October, 2023
I.A. No. 4707 of 2023
The instant interlocutory application has been filed for suspension
of sentence of the appellant under Section 389(1) of Cr.P.C., against the
judgment of conviction dated 06.02.2023 and order of sentence dated
13.02.2023 passed in NDPS Case No.16 of 2021, by learned District &
Additional Sessions Judge-I cum Special Judge, NDPS Act, Khunti,
whereby and whereunder, the appellant has been convicted under
Section 18(b) of the NDPS Act and directed to undergo 10 years R.I.
with a fine of Rs.1,00,000/- and in default of payment of fine to further
undergo S.I for one year.
2. It has been contended on behalf of the appellant that it is case
where the appellant has been convicted on the ground that the
commercial quantity of opium weighing 2.650 kg was recovered. It has
been contended that while measuring the said contraband, the
measurement was taken along with the container.
3. The conviction, since, is based upon recovery of the opium,
considering it to be of commercial in nature, in view of the admitted fact
as per the prosecution version that measurement was taken along with
the container, therefore, it is a possibility that the contraband may come
below the commercial quantity, if measurement is taken without the
weight of the container and hence the rigor of punishment, which is to
inflicted in the case of recovery of commercial quantity of contraband
will have bearing, if the quantity of contraband is less than 2.5 Kg.
4. However, the learned trial court has not appreciated the aforesaid
aspect of matter, even though the Investigating Officer has deposed at
para 26 of his testimony that contraband was measured along with the
container but without taking into consideration the aforesaid fact the
learned Trial Court has come to the conclusion by fixing accountability
upon the appellant having possessed the contraband, which is
commercial quantity. Therefore, it is a case where sentence is to be
suspended in connection with the judgment of conviction in question.
5. While on the other hand, learned A.P.P. appearing on behalf of the
Respondent State, who has filed an affidavit in objection in terms of the
order dated 30.08.2023, has submitted that the Investigating Officer in
his testimony has deposed that the weight of the container will be about
20/30 gm and even if the said measurement will be deducted from the
total quantity of recovered contraband i.e., 2.650 Kg then also it will be
under the commercial quantity and hence on that pretext the judgment of
conviction has been passed considering the contraband to be of
commercial quantity and hence, it cannot be said to suffer from any
error. Therefore, it is not a fit case where sentence is to be suspended.
6. We have heard learned counsel for the parties; gone across the
judgment including the findings recorded by the learned Trial Court; the
affidavit in objection filed by the respondent State and also the material
available in the LCR including the testimony of the witnesses.
7. It appears from the testimony of the Investigating Officer
examined as P.W.6, who, although has supported the prosecution version
where under the allegation against the appellant is of recovery of
2.650Kg of opium from his house. It further appears that the said
quantity of opium was revered from the house of the appellant along
with a container. It is also the case of the prosecution, as per the
testimony of the Investigating Officer that the said contraband on
recovery was measured along with the container.
8. The question which has been raised on behalf of the appellant is
that the measurement of the contraband (opium) along with the container
cast a doubt, since, the conviction is based upon the recovery of
contraband to be of commercial quantity, since it is more than 2.50 Kg.
9. This Court on consideration of the aforesaid contention of the
appellant that the measurement of the contraband was taken along with
the container and if the measurement of contraband had been taken
excluding the weight of the container, there was every likelihood that the
weight of the contraband would have come less than the commercial
quantity, is of the view that the appellant has been able to make out a
prima facie case for suspension of his sentence.
10. Accordingly, the appellant, above named, is directed to be
released on bail on furnishing bail bonds of Rs.25,000/- (Rupees Twenty
Five Thousand) with two sureties of the like amount each to the
satisfaction of learned District & Additional Sessions Judge-I cum
Special Judge, NDPS Act, Khunti in connection with NDPS Case No. 16
of 2021, arising out of Murhu P.S. Case No. 38 of 2021.
11. It is made clear that any observation made hereinabove will not
prejudice the case of the appellant on merit, since the criminal appeal is
lying pending before this Court.
12. In view thereof I.A. No. 4707 of 2023 is allowed and disposed of.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
A.Mohanty
