Jharkhand High Court
Ashok Kumar Singh vs The State Of Jharkhand on 4 April, 2025
2025:JHHC:10439
Cr. Appeal (S.J.) No.890 of 2007
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[Against the judgment and order of conviction dated 06.07.2007 and
sentence dated 09.07.2007 passed by learned Sessions Judge, West
Singhbhum at Chaibasa in G.R. Case No.63 of 1995]
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Ashok Kumar Singh, Son of Shri Shiv Chandra Singh @ Kari
Singh resident of Village-Baro, P.S. Barauni, Dist. Begusarai/Bihar
.... .... .... Appellant
Versus
The State of Jharkhand .... .... .... Respondent
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For the Appellant : Mr. B.M. Tripathy, Sr. Advocate
M/s. Nutan Sharma, Advocate
Mr. Naveen Kr. Jaiswal, Advocate
For the State : Mrs. Nehala Sharmin, S.P.P.
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGEMENT
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CAV On 24/01/2025 Pronounced On: 04/ 04 /2025
Per-Pradeep Kumar Srivastava
1. The present appeal is directed against the judgment and order
of conviction dated 06.07.2007 and sentence dated 09.07.2007
passed by learned Sessions Judge, West Singhbhum at
Chaibasa in G.R. Case No.63 of 1995 whereby and
whereunder, the sole appellant has been held guilty for the
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offence under section 20(b) of Narcotic Drugs and
Psychotropic Substance Act, 1985 and sentenced to undergo
R.I. of 5 years with fine of Rs.50,000/- and in default payment
of fine amount, he was further sentenced R.I. of 2 years.
FACTUAL MATRIX
2. Factual matrix giving rise to this appeal is that the prosecution
case is based on the written report of one Santosh Kumar,
A.S.I. Sadar, P.S. Chaibasa (Sadar) before Officer-in-Charge,
Chaibasa Sadar Police Station stating therein that during
course of patrolling in Assembly Election on 02.02.1995 at
about 1:00 AM, he was checking the vehicles, meanwhile, one
bus bearing Reg. No.OSJ-401 was stopped for checking then
one person was apprehended along with one briefcase(attache)
under suspicious circumstances. It is alleged that the said
attache was opened and then it was found containing 2 ½ kg of
ganja and the apprehended person disclosed his name as
Ashok Kumar(appellant).
On the basis of self written statement of the informant,
F.I.R. was registered for the offence under section 47 of Excise
Act but later on, charge-sheet was submitted for the offence
under section 20 of N.D.P.S. Act. The accused denied the
charges and claimed to be tried.
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3. In the course of trial, altogether 5 witnesses have been
examined by the prosecution namely:-
P.W.1 Yogendra Prasad Singh, Inspector of Police,
formal in nature
P.W.2 Ram Kaul Prasad
P.W.3, Ashok Kumar Yadav, both members of the
Raiding Party belonging to the Department of Police
P.W.4 Khokhan Kumar Rakshit
P.W.5 Pasupati Choudhary, formal in nature.
4. Apart from oral testimony of the witnesses, following
documentary evidences have been adduced:
Ext.1 is the FIR
Ext.2 is the seizure list
Ext.3 is the written report
Ext.4 is formal FIR
Ext.5. is search-cum-seizure list
Ext.6 is charge-sheet
Ext.7 is F.S.L. Report and
Ext.8 is Supplementary Charge-sheet under section
20(b) of N.D.P.S. Act.
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5. The accused after conclusion of trial has been held guilty and
sentenced as stated above, which has been assailed in this
appeal.
6. Learned senior counsel for the appellant assailing the
impugned judgment and order of conviction and sentence of
the appellant has argued that learned trial court has failed to
consider that due to non-examination of Investigating Officer,
the defence has seriously been prejudiced. Out of 5 witnesses
examined in this case, P.W.1 is a formal witness and P.W.4 is a
bus passenger, who have not supported the prosecution case.
Two seizure list witnesses namely Mani Ram Mundri and
Kundkuli Giri have also not been examined during trial to
prove the recovery of alleged ganja from possession of the
appellant. The attache, which was found containing ganja, has
also not been brought on record and proved to belong to the
appellant. P.W.2 Ram Kaul Prasad and P.W.3 Ashok Kumar
Yadav, who are constables have also failed to prove any
recovery of ganja from the possession of the appellant and
have not identified him behind the dock. P.W.5 Pasupati
Chaudhary has only conducted partial investigation of the
case. It is further submitted that no independent witness has
been examined among the public or the passengers, who were
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travelling in the said bus. There is no credit worthy credence to
establish the guilt of the appellant. The appellant has never
claimed to have any briefcase or attache with him rather he
was arrested on the basis to suspicion, which never culminated
into legal evidence against him. Learned trial court has over
looked the prosecution evidence as regards possession of the
contraband with the appellant in any manner and arrived at
wrong conclusion. Therefore, the impugned judgment and
order of conviction and sentence of the appellant is liable to be
set aside, allowing this appeal.
7. On the other hand, learned Special Public Prosecutor for the
State defending the impugned judgment and order of
conviction and sentence of the appellant has submitted that
there is direct evidence against the appellant that he was
apprehended with an attache while travelling in bus which
was intercepted during Assembly Election time on 02.02.1995.
The prosecution has further proved that the seized materials
were recovered from conscious possession of the appellant,
and were sent to FSL, Ranchi and the report (Ext.7) is also
available, which fortifies that the seized material was found to
be ganja. The appellant has offered no valid explanation
regarding possession of the said illicit ganja nor he has offered
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any valid defence or has been able to demolish the prosecution
case in cross-examination of the witnesses. Therefore, there is
no illegality or infirmity in the impugned judgment and order
calling for any interference in this appeal, which is devoid of
merits and fit to be dismissed.
8. I have gone through the record of the case along with the
impugned judgment and order in the light of contentions
raised on behalf both side.
9. It appears that in order to substantiate the charges leveled
against the appellant, altogether 5 witnesses were examined by
the prosecution.
P.W.1 Yogendra Prasad Singh, Inspector of Police,
who has simply stated that a seizure list of this case is in the
handwriting of S.I. Santosh Kumar, which is marked as Ext.2
and categorically admitted that in connection with this case, he
has conducted no proceeding.
P.W.4 Khokhan Kumar Rakshit has been declared
hostile by the prosecution and he has categorically stated in his
presence, nothing was recovered and he has no knowledge
about the occurrence. He came for his evidence on notice of the
court.
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P.W.5 S.I. Pasupati Choudhary. He is also a formal
witness, who has proved the signature of S.I. Santosh Kumar
on written report as Ext.3 and formal FIR as Ext.4. He has also
proved the signature of A.S.I, U. Singh, who was Investigating
Officer of this case. Admittedly, this witness was not a member
of raiding party nor involved in conducting investigation of
this case but he has stated about contents of FIR and what has
been done by I.O. during the investigation. There is no reason
as to how and under what circumstances, this witness was
permitted to be examined in this case. Therefore, this witness
was not cross-examined by the defence and his testimony is
absolutely absurd for the purpose of consideration.
P.W.2 Ram Kaul Prasad is constable and a member of
raiding party. According to his evidence, on 02.02.1995 at
about 1:00 AM, he along with other four constables and
inspector, Santosh Kumar were engaged in maintaining law
order during Assembly Election near J.M. Chawk, Chaibasa.
He has further deposed that in course of checking of Prakash
Roadways Bus, one boy alighted with a briefcase then on
suspicion, the briefcase was opened, which was found
containing 2 ½ kgs ganja. The boy disclosed his name as Ashok
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Kumar Singh. The ganja was handed over to sub-inspector,
which, which was seized by him.
In his cross-examination, he clearly admits that he was
never interrogated during the investigation rather for the first
time, he is deposing before the court. He cannot tell the colour
of attache, which was borne by the accused. The driver and the
cleaner of the said bus were not apprehended and
interrogated. He has also admitted that he is not an expert of
ganja/opium.
P.W.3, Ashok Kumar Yadav is another constable and
member of the raiding party. He has also stated that during the
check of the Prakash Roadways Bus, one boy bearing a suitcase
was alighting, which was checked on suspicion then 2 ½ kgs of
ganja was found. The boy disclosed his name as Ashok Kumar,
then this witness handed over the ganja to S.I. Santosh Kumar,
which was seized by him. The suitcase or ganja is not present
before him at present.
10. From the above evidences, it is crystal clear that except P.W.2
and P.W.3, who were member of raiding party, no other
witnesses have been examined by the prosecution. Although,
the material exhibit has been proved to be ganja but there is no
concrete evidence that the appellant was found with a
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briefcase containing ganja. No seizure list witness has been
examined. The informant and Investigating Officer of this case
have also not been examined. The suitcase allegedly belonging
to the appellant has also not been brought on record and never
produced during trial of the case. Therefore, the conviction of
the appellant for such serious offences cannot be sustained on
scanty evidences available on record. It is trite that the severely
punishable offence requires higher standard of concrete proof
to establish the guilt beyond reasonable doubt. In the instant
case, there is no sufficient evidence to prove the charge under
NDPS case against the appellant beyond all reasonable doubt.
Learned trial court has swayed upon the testimony of two
raiding party members without corroboration from evidence
showing complicity of the appellant in the alleged offence.
Therefore, the impugned judgment and order of conviction
and sentence of the appellant is not justified under law and is
liable to be set aside.
11. Accordingly, the judgment and order of conviction dated
06.07.2007 and sentence dated 09.07.2007 passed by learned
Sessions Judge, West Singhbhum at Chaibasa in G.R. Case
No.63 of 1995 is hereby, set aside and this appeal is allowed.
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12. The appellant is on bail, hence, he is discharged from liability
of bail bond. The sureties are also discharged.
13. Pending I.A(s), if any, is also disposed of accordingly.
14. Let a copy of this judgment along with Trial Court Records be
sent back to the trial court for information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, at Ranchi
Dated: 04/04/2025
Pappu/- N.A.F.R.
Cr. Appeal (S.J.) No.890 of 2007
