[Cites 11, Cited by 0]
Jharkhand High Court
Bijay Kumar Pradhan vs The State Of Jharkhand on 18 March, 2026
Author: Sanjay Prasad
Bench: Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No. 124 of 2025
With
I.A.No.10049 of 2025
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Bijay Kumar Pradhan ..... Appellant
Versus
The State of Jharkhand ..... Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. Arun Kumar Pandey, Advocate
For the State : Mr. Bhola Nath Ojha, A.P.P.
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C.A.V. on 16.02.2026 Pronounced on 18.03.2026
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This Criminal Appeal has been filed on
behalf of the appellant challenging the judgment of
conviction dated 16.12.2024 and sentence dated
18.12.2024, passed by Sri Ajay Kumar Singh, learned
Additional Sessions Judge-I, Chakradharpur, Chaibasa,
in N.D.P.S. Case No. 11 of 2022, by which the appellant
has been convicted for the offence under Sections
20(b)(ii)(B) of N.D.P.S. Act and sentenced to undergo R.I.
for Eight years and to pay the fine of Rs.60,000/-.
2. During course of argument, learned counsel for
the appellant submitted that he will not press I.A. No.
1932 of 2026 filed for grant of provisional bail of the
appellant, rather he is arguing the case on merit for grant
of bail to the appellant in I.A. No. 10049 of 2025.
3. This Interlocutory Application has been
filed on behalf of the sole appellant for suspension of
sentence and grant of bail during pendency of this appeal.
4. It is submitted by learned counsel for the
appellant in I.A. No. 10049 of 2025 that the impugned
judgment and sentence passed by the learned Trial Court
is illegal and not sustainable in law. It is submitted that
the appellant is innocent and has been falsely implicated
by the police. It is submitted that provisions of Sections
41, 42, 43 and 44 of N.D.P.S. Act have not been complied
with.
It is submitted that all the witnesses
produced by the prosecution were police personnels.
It is submitted that two independent
witnesses, namely Ranjit Sardar and Shivam Mukhi, i.e.
P.W.7 and P.W.9, have been declared hostile by the
prosecution.
It is submitted that the learned trial Court
has failed to consider that provisions of Sections 52, 52(a)
and 53 of N.D.P.S. Act have not been complied with,
which is in contravention of the judgment of the Hon'ble
Supreme Court.
It is submitted that no evidence was
available on trial court record that seized articles were
sent to F.S.L. without sealing and hence the authority
concerned had returned it and thereafter, the police
sealed and sent it again to F.S.L., which creates doubt in
the sampling, which was firstly sent to the F.S.L.
It is submitted that the learned Trial Court
has failed to consider that P.W.1 had stated in Para 31 of
his deposition that there were two memo of arrest
prepared firstly on 12.06.2022 and then on 13.06.2022,
which creates doubt on the date of occurrence and also
the arrest of the appellant on any particular date.
It is submitted that the learned Trial Court
has failed to consider the evidence of P.W.3, who has
stated in Para 8 that arrest Memo was prepared on
13.06.2022 in P.S. Chakradharpur.
It is submitted that the appellant is a
handicapped person, which is mentioned in the F.I.R. and
evident from the evidence of P.W.1, namely Rahul Kumar,
Sub-Inspector (Informant) at Para 21.
It is submitted that C.C.T.V. cameras
available in the railway station have not been seized and
produced by the prosecution during the trial.
It is submitted that the Hon'ble Supreme
Court in the case of Gangadhar @ Gangaram Vrs. State
of Madhya Pradesh reported in (2020) 9 SCC 202 has
held that prosecution does not dispense with the
obligation of prosecution to prove the charge beyond all
reasonable doubts.
It is submitted that even the I.O., namely
Mahendra Mahto was examined as P.W.13 and who had
also stated that seized articles were sent to the F.S.L. after
Five days and it did not bear seal of any authority.
It is submitted that the appellant is in
custody since 16.12.2024, i.e. for more than one year and
earlier also he was in custody for around Four months
and Six (06) days during trial, which has been mentioned
at Page 2 of the impugned judgment and hence, he may
be enlarged on bail.
5. On the other hand, learned A.P.P. has
opposed the prayer for bail. It is submitted that judgment
and sentence passed by the trial Court is proper. It is
submitted that this is a case of recovery of 3 kg 791 gm of
Ganja including the bag and 3 kg 45 gm of ganja without
Bag from the appellant.
It is submitted that the P.W.1, namely
Rahul Kumar, Sub-Inspector is the Informant of the case,
who has fully supported the case and has recovered 3 kg
45 gms of Ganja from the possession of the appellant,
which is kept in a bag, weighing in total 3 kg 791 gm
including the bag.
It is submitted that P.W.2, P.W.3, P.W.4,
P.W.5 and P.W.6, namely Swapan Kumar Sandil,
Constable Shailesh Kumar Anand, Vikram Singh,
Inspector, Ramchandra Mahto and Sardev Yadav
respectively are the eye witnesses and they have also fully
supported the case of the Informant and recovery of Ganja
from the possession of the appellant.
It is submitted that although P.W.7,
namely Ranjit Sardar, has been declared hostile, but he
has proved his signature on the Zimmenama and Chart
marked as Ext.P-2/1, Ext. P-4/1 respectively. He also
proved his signature on the search memo marked as Ext.
P-5/1 and Ext. P-5/2 and also proved his signature on
the seizure lists marked as Ext. P-7/1 and Ext. 8/1 and
Ext. P-10/1 respectively.
It is submitted that P.W.8 is Amit Das,
A.S.C., R.P.F., who is the Gazetted Officer and in the
presence of whom the appellant was searched, has also
supported the prosecution case. He also proved his
signature on Notice under Section 50 of N.D.P.S. Act given
to the accused as Ext. P-1/1 and proved his signature on
Brass seal as Ext. P-2/2.
It is submitted that on the instruction of
P.W.8, weighing machine was brought and then sample
was obtained and he has proved his signature on
Zimmanama and sample sheet, marked as Ext. P-3/1 and
Ext. P-4/2 respectively. He further proved his signature
on the Notice of personal search upon the appellant
marked as Ext. P-5/3 and his signature on Weighing
Chart of Ganja, i.e. Ext. P-6/1.
It is submitted that Material Exhibit is
marked as MO-1.
It is submitted that although P.W.9 is
declared hostile however, he proved his signature on
Seizure lists, marked as Ext.P-8/2 and Ext.P-7/2. He also
proved his signature on production cum seizure list,
personal search Memo and sample sheets containing
specimen signature chart as Ext.P-10/2, Ext.P-5/4 and
Ext.P-4/3 respectively.
It is submitted that P.W.11 and P.W.12,
namely Jyoti Kumari and Krishna Soy respectively, have
also supported the prosecution case regarding recovery
of Ganja whereas P.W. 13, namely Mahendra Mahto, is
the I.O., who had submitted chargesheet against the
appellant and proved the formal F.I.R., marked as
Ext.P-12.
It is submitted that all the provisions of
N.D.P.S. Act, including Section 41, 42, 43 and 44 and 52
to 52A and 53 of N.D.P.S. Act have been complied with
and the appellant has been searched in presence of a
Gazzetted Officer by giving proper opportunity and hence,
prayer of bail of the appellant may be rejected.
6. Perused the Trial Court Records and
considered the submission of both sides.
7. It transpires that the appellant had been
caught red handed with Ganja weighing 3 kg 791 gms
along with the bag containing it and the weight of Ganja
was found 3 kg 45 gm without the bag.
8. It transpires that P.W.1, namely Rahul
Kumar, Sub-Inspector is the informant of this case and he
had stated that while he, along with P.W.2 and P.W.5,
namely Swapan Kumar Sandilya and Ram Chandra
Mahto, were patrolling the railway station, then they had
arrested the appellant and there was recovery of Ganja,
weighing 3 kg. 45 gms without bag and 3 kg. 791 gms
with bag, from the possession of the appellant.
9. It transpires that the P.W. 1, namely
Rahul Kumar, i.e. the Informant of this case, has stated
that the appellant had demanded that he may be
searched in presence of a Gazetted Officer and as such he
was searched in presence of the Gazetted Officer, i.e.
P.W.8, namely Amit Das, A.S.C., R.P.F. and recovery has
been shown to be of 3 kg 45 gm of Ganja from the
appellant.
10. From the evidence of P.W.8, namely Amit
Das, it would appear that appellant was searched in his
presence by giving Notice under Section 50 of N.D.P.S. Act
and thereafter, Ganja was recovered from the possession
of the appellant. Thereafter, one Brass seal was brought
for keeping the seized contrabands and one weighing
machine was called for. It appears that P.W.8 has fully
supported the case. P.W.8 has even stated that on his
instruction, Sub Inspector Rahul Kumar, i.e. P.W.1, had
prepared sample sheet of seized Ganja and Ganja was
weighed in his presence. During cross-examination
nothing has been brought on record to discredit his
evidence.
11. It appears from Ext.P-15, i.e. the F.S.L.
Report dated 27.07.2022, that the seized article was
Ganja.
The documents related to weighment of
Ganja, sampling of Ganja etc. have been kept in L.C.R. as
Ext. No.s P-1, P-2, P-3, P-4, P-5, P-6, P-7, P-8 and P-9.
12. It appears that P.W.2, P.W.3, P.W.4, P.W.5
and P.W.6, namely Swapan Kumar Sandil, constable
Shailesh Kumar Anand, Vikram Singh, Ramchandra
Mahto and Sarvadev Yadav respectively, have fully
supported the recovery of Ganja from the possession of
the appellant.
13. It also appears that although independent
witnesses, i.e. P.W.7 and P.W.9, namely Ranjit Sardar and
Shivam Mukhi, were declared hostile by the prosecution,
but they had also proved their signature on the
production-cum-seizure list and Arrest Memo of the
appellant.
14. It appears that the P.W.13, namely
Mahendra Mahto, is the I.O. of this case who had has also
submitted chargesheet against the appellant.
15. It appears that the learned counsel for the
appellant has emphasized that the appellant was arrested
on 12.06.2022 and the F.I.R. was lodged on 13.06.2022,
i.e. after a delay of one day. However, this argument is not
tenable because it is evident from the F.I.R. that the
appellant was arrested on 12.06.2022 in the night hours
at around 12.45 hours and thereafter, F.I.R. was lodged
on 13.06.2022, at around 02.30 a.m., therefore, there is
neither any delay in lodging the F.I.R. nor in preparing the
seizure list as it was in the intervening period of change of
date and thus the plea of delay of one day in lodging the
F.I.R. is devoid of any merit.
16. So far the judgment passed in
Gangadhar @ Gangaram Vrs. State of Madhya
Pradesh reported in (2020) 9 SCC 202 is concerned, the
same is not applicable on the facts and in the
circumstances of this case.
In the above case, the appellant concerned
was convicted for being the owner of the house, from
which the recovery was made of the contraband article,
although he has taken the defence that he had sold the
house to the co-accused, namely Gokul Dangi on
12.06.2009, who had been acquitted by the Trial Court.
Even the first I.O. of the said case had stated that the
contraband was being stored in the house of said Gokul
Dangi. Thereafter, another I.O. had taken charge of the
case. However, during trial it was proved that the
appellant had handed over the house to the said Gokul
Dangi by virtue of a sale agreement dated 12.06.2009 and
the first I.O. had admitted that on 12.08.2009 the
appellant of the said case had submitted the said sale
agreement dated 12.06.2009 to him, i.e. the I.O., but it
was never investigated by him, however, subsequent I.O.,
i.e. P.W.16 had recorded the statement of some other
witnesses, but he had made the appellant accused on the
basis of voter list of the year 2008. No explanation was
offered for not investigating the sale agreement. Therefore,
the said judgment was with regard to recovery from the
house of the said appellant, which he claimed to have
already sold to said Gokul Dangi, and not from his
conscious possession and hence, Hon'ble Supreme Court
held the conviction of the appellant as unsustainable.
However, in the present case, the seized
narcotic substance was recovered from the conscious
possession of the appellant and hence, the said judgment
is not applicable in the facts and circumstances of the
case.
17. It has been held in the case of Jothi @
Nagajothi vs. The State, Rep. by the Inspector of
Police reported in [2025] 12 S.C.R 488 that non-
examination of independent witnesses is not always
fatal to the prosecution case and testimony of official
witnesses cannot be discarded on the ground of their
official status.
18. It has also been held by the Hon'ble
Supreme Court that assuming some deviation even
from ideal procedure under section 52A of NDPS Act,
such irregularity does not go to the root of the matter
nor does it create any reasonable doubt regarding
authenticity of the seized contraband or the identity of
the samples analyzed.
19. It has been held by Hon'ble Apex Court
in the case of Jothi @ Nagajothi vs. The State, Rep.
by the Inspector of Police reported in [2025] 12
S.C.R 488 at para-21, 23 and 27, as follows:-
"Para-21:- This Court has consistently held that
the non-examination of independent witnesses is
not, by itself, fatal to the prosecution, particularly
in prosecutions under the NDPS Act where
operations often take place under challenging
circumstances. In Surinder Kumar v. State of
Punjab (2020 (2) SCC 563), this Court reiterated
that the mere absence of independent witnesses
does not lead to the conclusion that the accused
has been falsely implicated. Referring to Jarnail
Singh v. State of Punjab ((2011) 3 SCC 521), the
Court underscored that the testimony of official
witnesses cannot be discarded solely on the
ground of their official status and that their
evidence must be assessed on its own merits like
that of any other witness.
Para-23:- The appellant's primary submission is
that the representative samples ought to have been
drawn only before a Magistrate in terms of Section
52-A of the NDPS Act and that sampling at the spot
itself renders the entire prosecution void. This
contention is legally untenable. In Bharat Aambale
v. State of Chhattisgarh, (2025) 8 SCC 452, this
Court has comprehensively clarified the scope,
purpose and effect of Section 52-A. Most
significantly, paragraphs 56.5 and 56.6 of the said
judgment make it clear that mere non-compliance or
delayed compliance with Section 52-A is not fatal
unless the irregularity creates discrepancies
affecting the integrity of the seized substance or
rendering the prosecution case doubtful. Equally,
even where some procedural lapse is shown, if the
remaining oral or documentary evidence inspires
confidence regarding the seizure and conscious
possession, the conviction may still be upheld.
Para-27:- In these circumstances, even assuming
some deviation from the ideal procedure envisaged
under Section 52-A, such irregularity does not go to
the root of the matter nor does it create any
reasonable doubt regarding the authenticity of the
seized contraband or the identity of the samples
analysed. The prosecution has demonstrated
substantial compliance with the statutory
requirements and the integrity of the material
evidence stands fully preserved. Accordingly, the
appellant's contention founded on non-compliance
with Section 52-A is rejected."
20. It further transpires that weighing of
Ganja was done in presence of Amit Das, A.S.C.-R.P.F.,
who was a Gazetted Officer at the time of search of the
appellant.
21. It appears that the seizure list was
prepared on 13.06.2022 in the night/morning hours and
there is no delay in preparing the seizure list as it took
place in the intervening night on 12.06.2022.
22. Although the appellant has taken the plea
of being a handicapped person, but this Court is not
inclined to consider the same, considering the gravity of
the crime and its effect on the society.
23. Thus, on the facts and in the
circumstances of this case and in view of the discussions
made above, this Court finds that the appellant has failed
to make out a case for suspension of sentence and as
such the appellant is not entitled to grant of bail at this
stage.
24. Thus, this Court finds no merit in this I.A.
No.10049 of 2025 and accordingly, I.A. No. 10049 of 2025
is, hereby rejected at this stage.
(Sanjay Prasad, J.)
s.m.
