Jharkhand High Court
Banshi Lal @ Bashi Lal vs State Of Jharkhand on 28 November, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1054 of 2023
Banshi Lal @ Bashi Lal, aged about 32 years S/O Dewa Ram R/O Village
Bakerakshani, P.O. + P.S. Luni, District- Jodhpur ( Rajsthan)
-- --- Appellant
Versus
State of Jharkhand --- --- Respondent
.......
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR For the Appellant : Mr. Arwind Kumar, Advocate For the State : Mr. Satish Prasad, A.P.P. Order No.09/ Dated 28th November, 2024 I.A. No. 11446 of 2024 The aforesaid instant interlocutory application has been filed for suspension of sentence of the appellant in connection with the judgment of conviction dated 12.05.2023 and order of sentence dated 15.05.2023 passed in N.D.P.S. Case No. 174 of 2021 arising out of Lawalong P.S. Case No. 46 of 2021 by the learned Sessions Judge- cum-Spl. Judge, N.D.P.S. Cases, Chatra whereby and whereunder, the appellant has been convicted for the offence punishable under Section 15(c) of the N.D.P.S. Act and has been sentenced to undergo R.I. for 10 years as well as fine of Rs. 1 Lakh and in default thereof, to further undergo S.I. for 3 months.
2. Learned counsel for the appellant has submitted that it is a case where the appellant has been convicted under section 15(c) of the N.D.P.S Act without any cogent and material evidence.
3. Learned counsel for the appellant has submitted that even the procedure as laid down under Section 52 A (2)(3)(4) of the NDPS Act has not been followed, since the contraband has not been sampled in the presence of the Magistrate as per the requirement as provided under Section 52A(2) (a)(b)(c).
4. Learned counsel for the appellant has taken the ground that 1 Cr. Appeal (DB) No. 1054 of 2023 there is no recovery from the physical possession of the present appellant and he was only driving the vehicle from which 59 bags of poppy seeds (Doda) have been recovered and he has no nexus with the said contraband. But without taking into consideration the aforesaid fact, appellant has been convicted.
5. Learned counsel for the appellant, based upon the aforesaid ground has submitted that it is a fit case where sentence is to be suspended.
6. On the other hand, learned A.P.P. appearing for the State has vehemently opposed the prayer for suspension of sentence.
7. It has been contended by the learned A.P.P. that it is not correct on the part of the appellant that nothing has recovered from his possession, since, as per the prosecution version and even from the truck 59 bags of contrabands have been recovered on interception of the said vehicle. The appellant has confessed his guilt also and accordingly the seizure memo was prepared in the presence of the appellant, which was signed by him.
8. It has further been contended that the said contraband had been sampled pursuant to the provision as stipulated under Section 52A(2)
(a)(b)(c) of the Act as would be evident from testimony of P.W.8 Nandan Kumar Singh (Investigating Officer of the case), who has proved the application regarding the deputation of the Magistrate for S.F.S.L report marked as Ext.6 and endorsement given by the learned Spl. Judge, N.D.P.S. Act, Chatra in the forwarding form, which has been marked as Ext. 7.
9. It is therefore, contended that provision as provided under N.DP.S Act has strictly been adhered to. Further, the quantity of contraband is huge and the learned Trial Court has found cogent evidence, based upon the statutory command and even on the basis of the principle laid down by the Hon'ble Supreme Court in the case of Union of India Vs. Mohanlal and Anr.(2016)3 SCC 379.
10. We have heard the learned counsels for the parties and gone 2 Cr. Appeal (DB) No. 1054 of 2023 across the findings rendered by the learned Trial Court in the impugned judgment. We have also gone through the testimonies of the witnesses and the materials exhibits available in the L.C.R.
11. It is the case of the prosecution that while the appellant was driving the vehicle in question, on the basis of the wrong registration number, which he has admitted in his confession, 59 bags of poppy seeds (doda) loaded in the said vehicle were recovered. At that time the seizure was prepared in which appellant has put his signature.
12. Subsequent thereto, as per the provision as provided under Section 52A(2)(a)(b)(c), the samplings have been done and at the time application was made for deputation of Magistrate ( Ext. 6) so as to send the samples to the SFSL. The P.W.8 has proved the document marked as Ext. 7, which is a forwarding letter of the learned Spl. Judge, ND.P.S., Chatra for the purpose of sending the samples to SFSL.
13. The law as provided under Section 52A, the requirement contained therein, the samples is to be taken in the presence of the Magistrate. Further, a sample from each bag having been recovered is to be sent so as to come to the conclusion regarding the quality to prove the prosecution version.
14. This Court has found from Ext. 6 which has been proved by P.W.8 that it is an application regarding deputation of Magistrate for SFSL report. Ext. 7 has also been proved by P.W.8 i.e., the signature of the learned Spl. Judge, N.D.P.S. Act, Chatra in the forwarding letter containing the detail of seized contraband for the purpose of sending to SFSL. The report of SFSL has been marked as Ext. 8 corroborates the nature of the contraband. It is further evident from the exhibit 8 that samples from all the 59 bags have been taken for the purpose of sending it to the SFSL.
15. This court, in the light of the materials available against the appellant, based upon which the judgment of conviction has been passed, is of the view that procedure as laid down under Section 3 Cr. Appeal (DB) No. 1054 of 2023 52A(2)(a)(b)(c) has strictly been followed and the nature of contraband has also been corroborated by the Magistrate. Therefore, it is not a fit case where sentence is to be suspended.
16. Accordingly, the prayer for bail made through I.A. No. 11446 of 2024 is rejected.
17. It is made clear that any observation made hereinabove will not prejudice the case of the parties on merit, since the criminal appeal is lying pending before this Court.
18. Consequently, I.A. No. 11446 of 2024 is disposed of.
(Sujit Narayan Prasad, J.) (Navneet Kumar, J.) A.Mohanty 4 Cr. Appeal (DB) No. 1054 of 2023