Jharkhand High Court
Bhikhari Sao vs The State Of Jharkhand on 27 January, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.1994 of 2023
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Bhikhari Sao, aged about 43 years, S/O Late Chhakan
Saw, R/O Village-Keredari, PO & PS-Keredari, Distt.-
Hazaribag, Jharkhand. ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Praveen Shankar Dayal, Advocate
: Mr. Pankaj Kumar, Advocate
For the State : Mrs. Shweta Singh, A.P.P.
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th
Order No. 09/Dated 27 January, 2025
I.A. No.552 of 2025
1. The instant interlocutory application has been filed
under Section 430(1) of the BNSS for suspension of sentence
dated 16.08.2023 passed by learned District and Additional
Sessions Judge-IV, Hazaribag in connection with N.D.P.S.
Case No.19 of 2020 arising out of Keredari P.S. Case No.67 of
2020 whereby and whereunder, the appellant has been
sentenced to undergo rigorous imprisonment for 12 years
with fine of Rs.1,20,000/- for the offence under Section
18(b)/29 of the N.D.P.S. Act and further rigorous
imprisonment for 12 years with fine of Rs.1,20,000/- for the
offence under Section 22(c)/29 of the N.D.P.S. Act, in default
of payment of fine, further R.I. for two years for each fine.
2. Mr. P.S.Dayal, learned counsel appearing for the
appellant, has submitted by taking the ground that in
absence of ascertaining the measurement of the contraband,
the judgment of conviction has been passed on presumption
of recovery of the contraband said to be of commercial
quantity.
3. It has been contended by referring to the testimony of
PW-2 at paragraph-34 that PW-2, in categorical word, has
deposed that he along with other members of the raiding
team, had not gone at the place of seizure along with any
machine or weighing machine.
4. Learned counsel appearing for the appellant has also
taken the ground with respect to non-observance of the
statutory provision as provided under Section 52A of the
N.D.P.S. Act, particularly, Sub-section (3) thereof with respect
to the process of sampling which has not been followed.
5. Learned counsel has further submitted that the
appellant is having no criminal antecedent which has come in
the testimony of PW-9, having been taken note in the
impugned judgment.
6. Learned counsel, based upon the aforesaid ground,
has submitted that it is, therefore, a fit case for suspension of
sentence.
7. While on the other hand, Mrs. Shweta Singh, learned
Additional Public Prosecutor appearing for State has
vehemently opposed the prayer for suspension of sentence.
8. It has been contended by referring to the testimony of
PW-4, who has deposed that he had gone at the place of
seizure/occurrence along with machine and save and except
the machine, no other thing was carried.
9. Learned counsel has submitted that so far as the
issue of sampling is concerned, the sampling has been done
in presence of the appellant who has put his signature and
thereafter the same was produced before the concerned
Judicial Magistrate and on his permission the report was sent
to the F.S.L. wherein the fact about the contraband has been
confirmed.
10. Learned State counsel, based upon the aforesaid
ground, has submitted that it is not a fit case for suspension
of sentence.
11. This Court has heard learned counsel for the parties,
gone across the finding recorded by the learned trial court in
the impugned judgment as also the testimony of witnesses
available in the lower court record and the exhibits available
therein.
12. This Court, in order to appreciate the argument
advanced on behalf of the parties, particularly, the testimony
of PW-2 upon which the reliance has been placed on behalf of
the appellant to the effect that the weighing machine has not
been carried by the raiding team. The question of bearing of
the weighing machine is the issue having been raised on
behalf of the appellant since the sentence is to vary upon the
quantum of the contraband which has been recovered.
13. The sentence, therefore, is to be based upon the
authenticity of the measurement which is only to be done as
per the Rule.
14. We have found from the testimony of PW-2,
particularly, at paragraph-34, that in the cross-examination
he has deposed that he along with the other members of the
raiding team has not carried any machine or weighing
machine. However, the PW-4, upon which reliance has been
placed by the learned State counsel at paragraph-18, has
deposed that he along with the other members of the raiding
team had reached to the place of occurrence along with the
machine and save and except the machine, nothing was
carried.
15. This court, considering the testimony of PW-2 and
PW-4, finds that there are contradictions with respect to the
issue of measurement.
16. This Court, relying upon the statutory mandate, the
measurement is having bearing upon the quantum of
sentence and the same having not been followed herein,
hence, is of the view that the appellant has been able to make
out a case for suspension of sentence.
17. Accordingly, the instant interlocutory application
being I.A. No. 552 of 2025 stands allowed.
18. In consequence thereof, the appellant, above named,
is directed to be released on bail during pendency of the
instant appeal 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 District and
Additional Sessions Judge-IV, Hazaribag in connection with
N.D.P.S. Case No.19 of 2020 arising out of Keredari P.S. Case
No.67 of 2020.
19. It is made clear that any observation made herein will
not prejudice the issue on merit as the appeal is lying
pending for its consideration.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Birendra/
