Jharkhand High Court
Dharmendra Yadav vs The State Of Jharkhand on 21 January, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.1014 of 2024
Dharmendra Yadav, aged about 32 years, son of Indra Narayan Yadav, Resident of
village--Jatahi, P.O. & P.S. - Khutauna, District- Madhubani, (Bihar)
..... 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. Rakesh Kumar, Advocate
For the State : Mr. Shailesh Kr. Sinha, A.P.P.
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Order No.8: 21st January 2025
Reference may be made to the order dated 20th January 2025. In pursuance
thereto, Hrudeep P. Janardhanan, Senior Superintendent of Police, Dhanbad has
appeared.
2. It has been stated by him that due care is being taken for the purpose of
proper investigation said to be under the statutory mandate, particularly the issue of
seizure, measurement and sampling, as provided under the NDPS Act, 1985 and the
NDPS Rules, 2022.
3. It has been submitted by him that the SOPs are being prepared. It has also
been stated that after the SOP, if any investigating officer is found to be involved in
latches of investigation, they will be proceeded to departmental proceeding, so as to
give message among the investigating officers that latches and deficiencies into
investigation shall be considered to be offence and crime against the society, so that
such latches may not be repeated in future.
4. The reason for calling the Senior Superintendent of Police, Dhanbad is the
latches in the matter of investigation by the concerned investigating officer, who
seized the contraband, which is in the quantity of 100 KG, the measurement has
been shown to be 100 KG on presumption, without utilizing the DD Kit as per the
procedure laid down under NDPS Rules, 2022.
5. Considering the said submission as has been taken note herein above, the
personal appearance of Senior Superintendent of Police, Dhanbad is dispensed with.
6. This instant interlocutory application has been filed for suspension of
sentence during the pendency of the appeal, which has been filed against the
Judgment of conviction dated 29.9.2023 and order of sentence dated 09.10.2023
passed by learned Special Judge, Dhanbad in NDPS Case No.03 of 2016, arising
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out of Barwadda P.S. Case No.02 of 2016, whereby and whereunder the appellant
has been convicted under Sections 20 (b) (ii) (c) of NDPS Act and sentenced to
undergo R.I. for 12 years with a fine of Rs.1,50,000/- and in default of payment of
fine, further directed to undergo R.I. for 2 years.
7. Mr. Rakesh Kumar, learned counsel appearing for the appellant has taken the
ground for suspension of sentence that although the conviction is based upon the
seizure of commercial quantity, which has been assessed to be 100 KG of ganja
(contraband), but the measurement of said recovered contraband (ganja) is done
only on presumption by the investigating officer, without it being measured by the
DD Kit as per the statutory command as provided under NDPS Rules, 2022. It has
also been submitted that even the sampling has not properly been done as required
to be done under Section 52(A) (3) of NDPS Act, 1985 coupled with Rules 8, 9 &
10 of the NDPS Rules, 2022.
8. The ground has also been taken by referring to the testimony of PW-4 &
PW-6 that the sampling before sending it to the FSL has also not been corroborated
by not producing the said contraband before the concerned Judicial Magistrate as
required under the Rules.
9. Learned counsel appearing for the appellant based upon the aforesaid
grounds has submitted that it is a fit case for suspension of sentence.
10. While on the other hand, Mr. Shailesh Kr. Sinha, learned Additional Public
Prosecutor appearing for State of Jharkhand has vehemently opposed the prayer for
suspension of sentence.
11. It has been contended that if the testimony of the witnesses is to be taken
into consideration, the grounds which have taken on behalf of the appellant, cannot
be said to be sufficient for the purpose of suspension of sentence.
12. It has been submitted that the contraband, so recovered has been send to the
FSL, wherein, the authenticity has come with respect to the contraband, so far as its
nature is concerned.
13. The learned State counsel based upon the aforesaid grounds has submitted
that it is not a fit case for suspension of sentence.
14. We have heard learned counsel for the parties and gone across the findings
recorded by the learned trial court in the impugned Judgment as also the testimony
as available in the lower court record and the material exhibits available therein.
15. This Court, taking into consideration the statutory command as provided
under Section 52 (A)(3) coupled with the provision under Sections 8,9 and 10 of the
NDPS Rules, 2022, wherein the detail procedure has been provided for the purpose
of measurement, seizure and sampling, the measurement is to be done by the DD
2 Cr. Appeal (DB) No.1014 of 2024
Kit, initial sampling before the gazetted officer and before sending to the FSL, the
same is under the authenticity of the concerned judicial magistrate, as required to be
there under Section 52 (A)(3) coupled with the provision under Sections 8,9 and 10
of the NDPS Rules, 1985.
16. Adverting to the factual aspect of present case, it is evident from the
testimony of investigating officer and the witnesses who have seized the contraband
said to be one quintal in quantity, but that quantity has been assessed without
getting it measured through the DD Kit. The purpose of DD Kit is also to come to
conclusion regarding the nature of the article, which has been recovered, so as to
assess, whether it is contraband or not as also for the measurement, but it is evident
from the testimony of the witnesses, that the measurement of one quintal of the
contraband is based upon the presumption, having not being used DD Kit. Further
the sampling has also not been done as required to be done as per the statutory
command. Therefore the benefit of doubt appears to be there and hence this Court is
of the view that the appellant has made out a case for suspension of sentence.
17. Accordingly, the instant interlocutory application being I.A. No.13159 of
2024 is allowed and disposed of.
18. In consequence, thereof, the appellant, named above, is directed to be
released 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
Special Judge, Dhanbad in NDPS Case No.03 of 2016, arising out of Barwadda P.S.
Case No.02 of 2016, subject to the condition that any observation made as above
will not prejudice the case of the appellant, since the appeal is pending for final
hearing.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
R.Kumar
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