Jharkhand High Court
Chalitar Ganjhu vs The State Of Jharkhand ... ... Opposite ... on 27 September, 2024
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Miscellaneous Jurisdiction)
B.A .No. 6732 of 2024
Chalitar Ganjhu, aged about 26 years, son of Ramkhelawan Ganjhu,
resident of Village- Soura, Nawadih, P.O. & P.S.- Lawalong, District-Chatra
... ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM : HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Petitioner : Mr. Binod Kumar Dubey, Advocate
For the State : Mr. Bhola Nath Ojha, APP
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09 /27.09.2024
Heard the learned counsels for the parties.
The learned counsel for the State, learned APP has tendered a
copy of the counter affidavit and it is taken on board.
The petitioner is an accused in connection with Gidhour P.S.
Case No. 16 of 2023 registered under sections 18, 27, 28 and 29 of the
N.D.P.S. Act, pending in the court of learned Principal District Judge at
Chatra.
The learned counsel for the petitioner has submitted that earlier
the bail application of the petitioner was withdrawn in BA No. 116 of 2024
by this Court vide order dated 03.05.2024 and the petitioner is in custody
from 23.02.2023 and therefore he has spent more than one year and six
months in custody and that may also be taken into consideration. Counsel
has further referred to the written report in the FIR and pointed out that in
the FIR itself, it is indicated that there were three accused persons on two
motorcycle and on one motorcycle one Pradeep Ganjhu and this petitioner
were seated. The learned counsel has further pointed out that from the FIR
itself, it is clear that this petitioner was sitting behind Pradeep Ganjhu and
the recovery of the substance which amounts to 4.2 kg was made from the
diccky of the motorcycle and Pradeep Ganjhu himself, as per the FIR, has
stated that motorcycle belongs to him. Counsel further submits that it is
absolutely clear that there was no physical recovery made from physical
possession of the petitioner and since the Pradeep Ganjhu himself has stated
that the motorcycle belong to him, on that basis itself the allegation cannot
be sustained against the petitioner or at least the benefit of doubt can be
extended to the petitioner. Counsel has then submitted that no independent
witness has put their signature on the seizure list. It is also submitted that
seized commodity was not sealed in accordance with law as it is the case of
the prosecution that in two plastic dabba the alleged opium was found, but
they did not take sample from each of the dabba, which is contrary to the
notification of the Central Government. Counsel has then stated that the
present FIR has no legal leg to stand. The learned counsel for the petitioner
has also submitted that petitioner has no other criminal antecedent. The
learned counsel for the petitioner has further pointed to the seizure list and
submitted that all the three accused persons including this petitioner had
signed and he has referred to section 52 A of the Narcotic Drugs and
Psychotropic Substances Act, 1985 and submitted that as per this section, at
the time of seizure, no magistrate was present and on such seizure when
sealing was made, the magistrate should have been present. Counsel has
relied upon the judgment in Yusuf @ Asif v. State reported in 2023 SCC
OnLine SC 1328, para-16, which reads as under:
"16. In the absence of any material on record to establish that the
samples of the seized contraband were drawn in the present of the
Magistrate and that the inventory of the seized contraband was duly
certified by the Magistrate, it is apparent that the said seized contraband
and the samples drawn therefrom would not be a valid piece of primary
evidence in the trial. Once there is no primary evidence available, the
trial as a whole stands vitiated."
Learned counsel for the State, on the other hand, has
opposed the bail petition and submitted that the law as such is that at the
time of seizure, it is not necessary that the magistrate is there but the
detection of the narcotic substance with the detecting kit can be done which
was done. Counsel has also submitted that section 50 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 says that a designated officer needs
to be present and the designated officer was present and according to section
50 notice was also given and thereafter the detection was done and then
material was sealed. Counsel says that thereafter the sealed packages can be
taken to the magistrate for sampling subsequent to which it could be sent to
the SFSL and that was the process that was adopted and the matter was
subsequently sent to the SFSL for testing and it has come back that the
material was opium and therefore, bail may not be allowed on this ground.
Counsel has also referred to the section 35 of the Act and pointed out that it
says that from the facts and circumstances of the case it can be presumed as
per section 35 of the Act that the presumption can be made of the culpable
mental state of all the accused persons including this petitioner, therefore,
bail may not be allowed to the petitioner.
Having heard both counsels, gone through the records of the
case, noted the submissions of the counsels for the parties and also the
custody of the petitioner and having gone through the lack of criminal
antecedent against the petitioner and in the facts and circumstances of the
case, I am inclined to release the petitioner, named above, on bail, on
furnishing bail bond of Rs. 25,000/- (rupees twenty five thousand only)
with two sureties of the like amount each to the satisfaction of learned
Principal District Judge at Chatra in connection with Gidhour P.S. Case No.
16 of 2023 , subject to the condition that the petitioner shall report to the
concerned police station on every last Saturday of the month, between 01:00
and 05:00 p.m for one year, failing which or if any adverse remarks
regarding his non-appearance at the police station, his bail bond shall be
liable to be cancelled. Any exemption to such attendance shall be done so
after direction of the learned Court below and the petitioner shall remain
present on each and every date of trial before the Court below unless
dispensed with by the learned Court below with further condition that the
petitioner will submit self-attested photocopy of his Aadhaar Card and also
submit his mobile number before the learned court below which he will
always keep active and will not change it during pendency of this case
without prior permission of the court.
(Ratnaker Bhengra, J.)
Sharda/-
