Jharkhand High Court
Bindu Choudhary @ Bindu Choudhari vs The State Of Jharkhand on 7 November, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1102 of 2024
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Bindu Choudhary @ Bindu Choudhari... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : Mr. Nilesh Kumar, Advocate
Mr. Rishi Pallav, Advocate
Mr. Ayush Kumar Verma, Advocate
For the Respondent : Mr. Bhola Nath Ojha, Spl.P.P.
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CAV on 04/11/2025 Pronounced on 07/11/2025
Per Sujit Narayan Prasad, J:
I.A. No. 10473 of 2025
Prayer
1. The instant interlocutory application has been filed on
behalf of appellant, under Section 430 of the BNSS, 2023 for
suspension of sentence dated 12.07.2024 passed by learned
Sessions Judge-cum-Special Judge, NDPS, Chatra in NDPS
Case No. 79 of 2019 arising out of Kunda P.S. Case No. 19 of
2019, whereby and whereunder, the appellant has been
found guilty of the offence under Section 18 of the NDPS Act
and accordingly sentenced to undergo Rigorous
Imprisonment for 15 years with fine of Rs. 1,50,000/-.
Prosecution Case
2. The prosecution case, in brief, as mentioned in the
impugned order of judgment, is that one Birsa Uraon-SI of
Kunda PS along with police party proceeded from PS on
07.03.2019 at about 04.00 PM, for investigation of pending
cases and conducting raid. At about 04.45 PM, he reached
near village chiloi and found one person coming from chiloi
side by Motorcycle. Finding the police party, he escaped
leaving a plastic bag over his TVS Apache Motorcycle No. JH
13E 9973. Motorcycle was searched and wet opium kept in
four polythene pack was found. Upon weighing the wet opium
in the four bags are found weighing 02.400 Kg; 02.500 Kg;
02.200 Kg; 02.200 Kg in total 09.300 Kg.
3. Accordingly, seizure list was prepared. Later on, one
person reached and disclosed that this Motorcycle is of Bindu
Choudhary who is indulged in illegal trade of opium and
today he was going with opium but finding the police party,
he escaped leaving his Motorcycle.
4. Thereafter, Kunda P.S. case No. 19/2019 dated
07.03.2019, U/s 18, 20(B), 22 of the NDPS Act was lodged
against owner of Motorcycle JH 13E 9973 i.e., the present
appellant.
5. After investigation, the police submitted charge-sheet
No. 51/2019, dated 02.08.2019 against present accused
namely Bindu Choudhary for the offence punishable U/s 18,
20(B), 22 of the NDPS Act. Whereafter, cognizance of the
offence was taken on 19.08.2019 and it became NDPS Case
No. 79/2019.
6. Charge was framed on 01.10.2019 against present
appellant namely Bindu Choudhary for the offence
punishable U/s 18 of NDPS Act, to which he pleaded not
guilty and claimed to be tried.
7. In order to substantiate the prosecution case,
prosecution has examined altogether seven witnesses. One
defence witness has also been examined on behalf of
appellant and relevant documents were marked as exhibit.
8. The learned trial court, after appreciation of evidence,
has found the charges levelled against the present applicant
proved beyond reasonable doubt and accordingly the present
applicant has been convicted and sentenced as aforesaid.
9. The instant interlocutory application has been preferred
by the applicant/appellant with the prayer for the suspension
of sentence during pendency of the instant appeal.
Submission by the learned counsel for the
applicant/appellant:
10. The learned counsel for the applicant/appellant has
submitted that the learned trial court has committed grave
error in passing the impugned judgment without complying
the provision of Section 52, 52A and 67 of the NDPS Act.
11. Further, the learned trial court has failed to appreciate
that the prosecution case rests on the deposition of only
members of raiding party who have not stated anything
against the appellant. It has been submitted that none of the
witnesses either the informant or other member of the raiding
party have stated about presence of the person who had
named the appellant as the rider of motorcycle and trader of
opium.
12. Learned trial court has also failed to consider that in the
FIR it has been mentioned about search and seizure of TVS
Apache Motrocycle being Registration No. JH13 E/9973 but
the same has not been mentioned in the seizure list rather it
has been mentioned about Splendor Deluxe Motorcycle.
Furthermore, the seizure was not made in presence of
independent witnesses.
13. Further submission has been made that there are so
many discrepancies in the testimony of the witnesses.
14. Learned counsel for the applicant has further submitted
that the alleged opium at the time of seizure was in total
9.300 KG [in four plastics] but PW 7 has brought opium
weighing in total 9.500 KG i.e., the weight of the opinion
became more than that was seized even though from the
alleged seized opium sampling was also done. Submission
has been made that it shows that the material produced in
the court is not the same that was seized.
15. Further submission has been made that the learned
trial court has also not taken into consideration the ground
which the appellant has taken since very beginning that he
went to Gaya for treatment of his mother on the relevant date
i.e., 07.03.2019.
16. So far period of custody is concerned, it has been
submitted that the appellant remained in custody for 3
months during trial and thereafter he is in jail custody since
the date of judgment i.e., 08.07.2024 i.e., in total one year
seven months.
17. Learned counsel for the appellant based upon the
aforesaid grounds has submitted that it is a fit case for
suspension of sentence.
Submission on behalf of respondent-State
18. While on the other hand, learned APP appearing for the
State has vehemently opposed the prayer for suspension of
sentence and submitted that the prosecution has
successfully been able to prove the case under Section 18 of
the NDPS Act.
19. It has further been submitted that seized material was
sent for forensic test where the material was found to be
Opium. Learned State counsel has submitted that testimony
of the witnesses has been corroborated of the prosecution
story.
20. Furthermore, the appellant is involved in two more
cases of similar nature. One has been registered as Kunda
P.S. Case No. 14 of 2024 [ in Chatra, Jharkhand] and
another in Haryana as Sirsa P.S. Case No. 512 of 2023.
Therefore, it is evident that the appellant is involved in intra-
state illegal business of opinion and if he would be released
on bail by suspension of sentence, there is very likelihood
that appellant may engage himself in the said business.
Response by the learned counsel for the appellant:
21. In response, learned counsel for the appellant has
submitted that in both the cases, the appellant is on bail
finding that there is no prima facie case against the
appellant.
Analysis
22. We have heard learned counsel for the parties and gone
across the finding recorded by the learned trial Court in the
impugned judgment as also the testimony of the witnesses as
available in the Trial Court Records.
23. Before entering into merit of the contentions of the
learned counsel for the parties, it would be apt to refer herein
the settled proposition of law that there is difference between
grant of bail in case of pre-trial arrest and suspension of
sentence, post- conviction. The Hon'ble Apex Court in the
case of Preet Pal Singh Vrs. State of U.P., reported in
(2020) 8 SCC 645 has observed that there is difference
between 'grant of bail' in case of pre-trial arrest and
'suspension of sentence', post-conviction.
24. In the earlier case, there may be presumption of
innocence, which is a fundamental postulate of criminal
jurisprudence, and the courts may be liberal, depending on
the facts and circumstances of the case, however, in case of
post-conviction bail, by suspension of operation of the
sentence, there is a finding of guilt and the question of
presumption of innocence does not arise. For ready reference,
the relevant paragraph of the aforesaid judgment is being
quoted as under:-
"35. There is a difference between grant of bail under Section
439 CrPC in case of pre-trial arrest and suspension of sentence
under Section 389 CrPC and grant of bail, post conviction. In the
earlier case, there may be presumption of innocence, which is a
fundamental postulate of criminal jurisprudence, and the courts
may be liberal, depending on the facts and circumstances of the
case, on the principle that bail is the rule and jail is an
exception, as held by this Court in Dataram Singh v. State of
U.P. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1
SCC (Cri) 675] However, in case of post-conviction bail, by
suspension of operation of the sentence, there is a finding of
guilt and the question of presumption of innocence does not
arise. Nor is the principle of bail being the rule and jail an
exception attracted, once there is conviction upon trial. Rather,
the court considering an application for suspension of sentence
and grant of bail, is to consider the prima facie merits of the
appeal, coupled with other factors. There should be strong
compelling reasons for grant of bail, notwithstanding an order of
conviction, by suspension of sentence, and this strong and
compelling reason must be recorded in the order granting bail,
as mandated in Section 389(1) CrPC."
25. Thus, it is evident from the aforesaid judgment that
during consideration of suspension of sentence which is the
postconviction stage, the presumption of innocence in favour
of the accused cannot be available and at this stage, the
Court's only duty is to see that the prima-facie case is made
out or not, as such, the detailed appreciation of evidence is
not required at this stage. It has further been observed by the
Hon'ble Apex Court that there should be strong compelling
reasons for grant of bail, notwithstanding an order of
conviction, by suspension of sentence, and this strong and
compelling reason must be recorded in the order granting
bail, as mandated in Section 389(1) CrPC.
26. Further, it is settled connotation of law that the
appellate court should not reappreciate the evidence at the
stage of consideration of suspension of sentence and try to
pick up a few lacunae or loopholes here or there in the case of
the prosecution. Such would not be a correct approach and
at this stage Court is only to see the prima facie case for its
satisfaction.
27. It requires to refer herein that prior to enactment of
NDPS Act, 1985 the statutory control over narcotic drugs was
exercised in India through number of Central and State
enactments like the Opium Act, 1857, the Opium Act, 1878
and the Dangerous Drugs Act, 1930. With the passage of time
and developments in the field of illicit drug traffic and drug
abuse at national and international level, many deficiencies
in the said enactments were noticed by the Parliament, which
led to enactment of a comprehensive legislation on Narcotic
Drugs and Psychotropic substances i.e. NDPS Act, 1985. The
said Act was enacted in 1985 mainly to consolidate and
amend the laws relating to narcotic drugs, and to make
stringent provisions for the control and regulation of
operations relating to narcotic drugs and psychotropic
substances. Various provisions of the Act have been amended
from time to time considering the need to do so by the
Parliament.
28. A three-judge bench of the Hon'ble Apex Court in case of
Hira Singh and Another Vs. Union of India and Another
(2020) 20 SCC 272 expressing serious concern about the
problem of drug addicts and had observed that the provisions
of NDPS Act are required to be interpreted keeping in mind
the object and purpose of the said Act and the impact on the
society as a whole. It was also observed that the Act is
required to be interpreted literally and not liberally which
may ultimately frustrate the object, purpose and Preamble of
the Act. The precise observations made by the Hon'ble Apex
Court are reproduced hereunder:
"10.5. The problem of drug addicts is international and the
mafia is working throughout the world. It is a crime against
the society and it has to be dealt with iron hands. Use of
drugs by the young people in India has increased. The drugs
are being used for weakening of the nation. During the British
regime control was kept on the traffic of dangerous drugs by
enforcing the Opium Act, 1857 the Opium Act, 1875 and the
Dangerous Drugs Act, 1930. However, with the passage of time
and the development in the field of illicit drug traffic and during
abuse at national and international level, many deficiencies in
the existing laws have come to notice. Therefore, in order to
remove such deficiencies and difficulties, there was urgent need
for the enactment of a comprehensive legislation on narcotic
drugs and psychotropic substances, which led to enactment of
the NDPS Act. As observed hereinabove, the Act is a special law
and has a laudable purpose to serve and is intended to combat
the menace otherwise bent upon destroying the public health
and national health. The guilty must be in and the innocent
ones must be out. The punishment part in drug trafficking is an
important one but its preventive part is more important.
Therefore, prevention of illicit traffic in the Narcotic Drugs and
Psychotropic Substances Act, 1985 came to be introduced. The
aim was to prevent illicit traffic rather than punish after the
offence was committed. Therefore, the courts will have to
safeguard the life and liberty of the innocent persons.
Therefore, the provisions of the NDPS Act are required to
be interpreted keeping in mind the object and purpose of
the NDPS Act; impact on the society as a whole and the
Act is required to be interpreted literally and not liberally
which may ultimately frustrate the object, purpose and
Preamble of the Act. Therefore, the interpretation of the
relevant provisions of the statute canvassed on behalf of the
accused and the intervener that quantity of neutral substance(s)
is not to be taken into consideration and it is only actual content
of the weight of the offending drug, which is relevant for the
purpose of determining whether it would constitute "small
quantity or commercial quantity", cannot be accepted"
29. In the backdrop of the aforesaid settled proposition of
law this Court is now adverting to the fact of the instant case
in order to ascertain that whether prima facie case for
suspension of sentence is made out or not.
30. Herein, as per the prosecution story which has been
referred in the preceding paragraph is that a Motorcycle TVS
Apache bearing No. JH 13E 9973 from which contraband was
seized is stated to belong to applicant/appellant herein.
Further as per the testimony of the informant that the said
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Motorcycle was searched and wet opium kept in four
polythene pack total 9.300 KG was found. Further admitted
fact is that the appellant has not been apprehended from the
place since the accused had escaped from the place of
occurrence.
31. P.W.2 informant has categorically stated that at the
place of occurrence, Seizure list was prepared and witness
Hawaldar Akhilesh Singh and Driver Arun Kumar put their
signatures. entire seizure list is Exhibit-1/1 and they
returned to police station with seized Motorcycle and opium.
He had stated that he can identify the accused on seeing.
32. PW-1 - Akhilesh Singh - seizure list witness and
member of police party has substantiated the testimony of
P.W.2 and has testified that on that day he was going towards
Chiloi side with ASI Anil Singh for investigation of pending
cases. Meanwhile they saw that a Motorcycle No. JH 13N
9973 was coming and its rider attempted to escape. He was
chased but succeeded and a bag was found hanging in the
Motorcycle. There opium was kept in 04 plastic bags,
weighing about 9.300 kg and the same was seized under
seizure list by ASI Anil Singh. It is marked as Exhibit-1.
33. Further the investigating officer of the case who has
been examined as P.W.3 had stated that witnesses Hawaldar
Akhilesh Singh, Constable- 55 Ranjeet Kumar Singh,
Constable- 796 Anup Kumar Singh and driver constable Ram
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Arum Kumar - all the witnesses supported the occurrence
and seizure. He had further testified that he got the seized
material from PS Malkhana and thereafter he submitted an
application regarding deputation of Magistrate for sampling
and sealing. He received the sealed sample and sent to the
SFSL, Ranchi. He further testified that in course of
investigation, he went to the house of accused/appellant and
his family members disclosed that the Motorcycle of
accused/appellant was taken by any villager but the name of
villager was not disclosed.
34. Further from testimony of P.W.5 and 6 it is evident they
had supported the prosecution case and they had stated on
the same line as stated by the P.W.1 and 2. It is apparent
from the record that the PW 7 - Madan Kumar Singh -
produced the seized material in court and he testified that
the seized material was in four dibbas weighing 9.300kg and
said dibbas were marked as material Exhibit-I to IV.
35. Thus, on the basis of the aforesaid factual aspect prima
facie it appears that culpability of the present appellant in the
alleged crime has been established by the prosecution.
36. Herein from the testimony of the testimony, it is evident
that it is the case of recovery of more than 09 KG opium in
four polythene from motorcycle no. JH-13E-9973 was made
and the said Motorcycle was admittedly owned by the present
appellant and that the present accused escaped leaving the
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motorcycle finding the police party. Further it is prosecution
case that the police party was in special raid regarding
pending cases and in course of same they found the rider
escaped leaving the motorcycle and from the said motorcycle,
total 9.3 KG opium was found in four polythene.
37. Thus, on the basis of the aforesaid factual aspect, prima
facie it can be safely inferred that the contention of the
learned counsel for the appellant that the contention that the
alleged opium at the time of seizure was in total 9.300 KG [in
four plastics] but the weight of the opinion became more than
that was seized even though from the alleged seized opium
sampling was also done is not fit to be accepted in the light of
testimony of P.W.7 which has been mentioned in the
impugned order wherein it has been categorically stated that
the seized exhibit is in four dibbas weighing in total 09.300
Kg. Further it needs to refer herein that SFSL report- Ext-7
clearly confirms that seized material was opium and the
contraband which was seized was more than 9.3 Kg in weight
which is more than commercial quantity.
38. Further, the learned counsel for the petitioner at this
stage i.e post-conviction stage has raised the issue of non-
compliance of some provisions of Act 1985 particularly 52A
and emphatically contended that search and seizure was not
carried out as per the mandate of the Act 1985.
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39. In the aforesaid context it needs to refer herein that
whether the evidence collected by an alleged illegal search or
seizure is admissible or not has been considered by the
Hon'ble Apex Court in the series of the cases of Khet Singh
vs. Union of India (2002) 4 SCC 380 wherein it has been
observed that "Law on the point is very clear that even if
there is any sort of procedural illegality in conducting the
search and seizure, the evidence collected thereby will not
become inadmissible and the court would consider all the
circumstances and find out whether any serious prejudice
had been caused to the accused.
40. Further, The Hon'ble Apex Court in the case of
Narcotics Control Bureau versus Kashif 2024 INSC 1045
had observed that Section 52A was inserted only for the
purpose of early disposal of the seized contraband drugs and
substances, considering the hazardous nature, vulnerability
to theft, constraint of proper storage space etc. There cannot
be any two opinions on the issue about the early disposal of
the contraband drugs and substances, more particularly
when it was inserted to implement the provisions of
International Convention on the Narcotics Drugs and
Psychotropic Substances, however delayed compliance or
non-compliance of the said provision by the concerned 22
officer authorised to make application to the Magistrate could
never be treated as an illegality which would entitle the
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accused to be released on bail or claim acquittal in the trial,
when sufficient material is collected by the Investigating
Officer to establish that the Search and Seizure of the
contraband substance was made in due compliance of the
mandatory provisions of the Act.
41. It has further been held by the Hon'ble Apex Court in
the aforesaid case i.e. Narcotics Control Bureau versus
Kashif (supra) that Sub-section (2) of Section 52A lays down
the procedure as contemplated in sub-section (1) thereof, and
any lapse or delayed compliance thereof would be merely a
procedural irregularity which would neither entitle the
accused to be released on bail nor would vitiate the trial on
that ground alone and any procedural irregularity or illegality
found to have been committed in conducting the search and
seizure during the course of investigation or thereafter, would
by itself not make the entire evidence collected during the
course of investigation, inadmissible.
42. Herein from perusal of the impugned order, it is evident
that the prosecution successfully proved that on fateful day
at 4.45 PM, motorcycle no. JH-13E-9973 was found coming
and finding the police party escaped leaving the motorcycle
and from the said motorcycle, total 09.300 KG opium was
recovered in four plastics which was more than commercial
quantity and admittedly the said seized motorcycle belongs to
the appellant accused. Further it appears from the impugned
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order/judgment that the accused appellant has failed to
prove before the learned trial Court that he was not riding the
motorcycle at the fateful date and time. Further, it has been
noted by the learned trial Court that Samples were duly
taken in presence of Magistrate and was sent to SFSL for
scientific examination with due permission of court
concerned and the SFSL report- the Ext-7 clearly confirms
that seized material was opium.
43. Thus, on the basis of the aforesaid factual aspect as well
as settled position of law as settled by the Hon'ble Apex Court
particularly in the case of Narcotics Control Bureau versus
Kashif (supra) this Court is of the view that the aforesaid
contention of the applicant is not tenable in the eye of law.
44. Further it has come in impugned order/judgment that
name of present appellant/applicant has transpired in other
cases i.e. Kunda PS case no.14/2024(u/s 323, 324, 307,
452, 34 of IPC), Sirsa PS case no. 512/2023, (u/s 17(c), 61,
85 of NDPS Act).
45. Thus, this Court, on the basis of discussion made
hereinabove and further taking into consideration the settled
position of law as enunciated by the Hon'ble Apex Court in
the case of Preet Pal Singh Vrs. State of U.P.(supra) and
Narcotics Control Bureau versus Kashif (supra), is of the
view that the instant interlocutory application is not fit to be
allowed.
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46. Accordingly, the instant Interlocutory Application is
hereby dismissed.
47. It is made clear that any observation made hereinabove
will not prejudice the case of the parties on merit since the
appeal is lying pending for its consideration.
I Agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Alankar/-
7th November, 2025
A.F.R.
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