Jharkhand High Court
Vikash Kumar @ Vikash Kumar vs Union Of India Through Ncb on 21 February, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 981 of 2023
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Vikash Kumar @ Vikash Kumar
... ... Appellant
Versus
Union of India through NCB ... ... Respondent
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. Ayush Kumar Verma, Advocate
Ms. Tanu Kumari, Advocate
For the Respondent : Mr. Anil Kumar, ASGI
Ms. Chandana Kumari, AC to ASGI.
Mr. Kumar Swapnil, AC to ASGI
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Order No. 06 : Dated 21 February, 2025
I.A.(Cr.) No. 1715 of 2025
1. The instant interlocutory application has been filed
under Section 430(1) of the BNSS, 2023 for suspension of
sentence dated 01.05.2023 passed by learned Special Judge
(NDPS), East Singhbhum, Jamshedpur in N.D.P.S. Case NO.
08 of 2022 arising out of N.C.B. Case No. 06 of 2021,
whereby and whereunder, the appellant has been sentenced
to undergo R.I. for 20 (Twenty) years and fine of Rs.
2,00,000/-, in default of payment of fine he will suffer further
R.I. for six months for the offence committed u/s 20 (b)(ii)(C)
of N.D.P.S. Act, further sentence to undergo R.I. for 20
(Twenty) years and fine of Rs. 2,00,000/-, in default of
payment of fine he will suffer further R.I. for six months for
the offence committed u/s 25 of N.D.P.S. Act and further
sentence to undergo R.I. for 20 (Twenty) years and fine of Rs.
2,00,000/-, in default of payment of fine he will suffer further
R.1. for six months for the offence committed u/s 29 of
N.D.P.S. Act. The period already undergone in custody by the
convicts in this case will be set off with the sentence and
further directs to execute personal bond of Rs. 2,00,000/- to
abstain himself for commission of any offence under the
N.D.P.S. Act for a period of two years in terms of section 34 of
the N.D.P.S. Act.
2. It has been contended on behalf of appellant that the
judgment of conviction is passed without following the
statutory provision as contained under the provisions of
NDPS Act, 1985. It has further been submitted, by referring
to the provision of Section 65B of the Indian Evidence Act
basis upon which the judgment of conviction has been
passed, that provisions of the Act though the same has not
been complied with but the appellant has been convicted.
3. It has been contended that the appellant was only
escorting the truck/vehicle carrying the contraband i.e., 697
KG of Ganja and merely on the basis of the same and
confessional statement of the driver the appellant has been
implicated in the instant case. Further the recovery is not
from the physical or conscious possession of the appellant.
4. Learned counsel for the appellant based upon the
aforesaid grounds has submitted that it is a fit case for
suspension of sentence.
5. While on the other hand, learned counsel appearing for
the respondent has vehemently opposed the prayer for
suspension of sentence, during pendency of the instant
appeal.
6. It has been contended that none of the statutory
provision as provided under Section 51 (A) 3 of the NDPS Act
and Rule 22 of the NDPS Rules has been flouted. The learned
trial Court based upon the provision of Section 65B of the
Indian Evidence Act has passed the judgment of conviction
and order of sentence.
7. It has further been submitted that the P.W. 5 at
paragraph 68 has deposed about the Call Details Record
[CDR] analysis, which has been given after compliance of
provision of Section 65 B of the Indian Evidence Act and to
that effect a certificate has been issued, which has been
marked as Exhibit P-22, from perusal of which is evident that
there was continuous talk of the appellant with the driver of
the vehicle which was carrying the contraband, Ganja of 697
kilogram of Ganja.
8. Submission therefore has been made that since the
nature of crime is heinous, as such the prayer for suspension
is not fit to be allowed.
9. We have heard learned counsel for the parties, gone
through the finding recorded by the learned trial court in the
impugned judgment and the testimony of the witnesses as
also the material exhibits, as available in the Lower Court
Records.
10. This Court, in order to appreciate the argument
advanced on behalf of appellant that the statutory provision
as contained under Section 52 of the NDPS Act has not been
followed, has gone through the testimony of the witnesses in
entirety as also the exhibits and found therefrom that the
procedure as laid down Section 52(A) 3 has been followed
since beginning i.e., from the stage of search and seizure as
also the sampling of the contraband has been sent after being
placed before the concerned authority after getting due
signature over the document based upon which the sample
was sent to the FSL and the learned trial Court has taken
into consideration the aforesaid aspect of the matter.
11. Further the complicity of the appellant has been found
to be there which is on the basis of CDR report showing the
continuous talk of the appellant with the driver of the vehicle
which was carrying the contraband, the report of which has
been marked as Exhibit P-22. Further the Section 65-B of the
Indian Evidence Act has also been complied with, as would
be evident from the testimony of the Investigating Officer,
who has been examined as P.W. 5.
12. This Court considering the aforesaid fact and taking into
consideration the fact that large quantify of contraband i.e.,
697 kilogram of Ganja has been recovered, is of the view that
the appellant has not been able to make out a prima facie
case for suspension of sentence and hence the instant
Interlocutory Application deserves to be dismissed.
13. Accordingly, the instant Interlocutory Application being
I.A. No. 1715 of 2025 stands dismissed.
14. It is made clear that any observation(s) made
hereinabove will not prejudice the case of the parties on merit
since the appeal is lying pending for its consideration.
(Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.)
Alankar/
