Subhash Gupta v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (S.J.) No. 788 of 2007 --------- Subhash Gupta ..… Appellant Versus The State of Jharkhand ….. Respondent ---------- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD For the Petitioner For the Respondent : Mrs. Vandana Bharti, Advocate ---------- : Mr.Dhirendra Kr. Prasad, Advocate --------- 04/19.06.2024 This Criminal appeal has been filed on behalf of the appellant challenging the judgment of conviction and sentence dated 15.06.2007, passed by Sri Ravi Kumar Sahay, learned Additional Sessions Judge-Ist-cum-Special Judge, Dhanbad in Special Case No. 26 of 2001, by which the appellant has been convicted for the offence under Section 20 of Narcotic Drugs and Psychotropic Act, 1985 and sentenced to undergo R.I. for two years and to pay a fine of Rs.1,000/-. 2. The prosecution Story, in short, is that on 10.09.2001, the Informant Mahendra Nath Tiwary, Officer-in-Charge, Kenduadih police station had received an information that near the Kenduadih Pool, Hanuman Mandir, in between Abhishek Parts Shop and Tobacco shop in a Gumati there is sale of illegal Ganja. He also received information that there is Ganja in the said Gumati. After receiving information, the informant along with Inspector of Kenduadih Anchal, D.S.P., Dhanbad arrived at the said Gumati of 1 the appellant Subhash Gupta along with two independent witnesses, Nakul Saw and Sheo Nandan Saw. At that time the said Gumti was opened, but there was no person in the said Gumti. The D.S.P., Dhanbad and other police personnel raided the said Gumti of accused after following the rules and recovered 104 big and small pouches of polythene which contained illegal ganja. It is alleged that in some packets, Rs.40/- was written, whereas in some other packets Rs. 20/- and Rs.5/- respective were written. Thereafter, the D.S.P., Dhanbad seized the said 104 packets of Ganja and accordingly seizure list was prepared and two independent witnesses had also signed on the said seizure list. Even the sample of seized Ganja was also sealed. The sample was sent to the F.S.L. for chemical test. 3.
Legal Reasoning
Heard Mr. Dhirendra Kumar Prasad, learned counsel for the appellant and Mrs. Vandana Bharti, learned A.P.P. 4. It is submitted by learned counsel that the appellant is innocent. It is submitted that the impugned judgment of conviction and sentence passed by the learned Court below is illegal, arbitrary and not sustainable in the eye of law. It is submitted that the appellant has been falsely implicated with vested interest by the prosecution. It is submitted that neither the seizure-list witnesses nor the independent witnesses had supported the factum of recovery from 2 the shop of the appellant and the factum of recovery/seizure of Ganja has not been proved in accordance with law. It is submitted that the Investigating Officer has not been examined in this case. It is submitted that since the quantity of specified article has not been mentioned, the prosecution has miserably failed to prove the charges of Section 20 of the N.D.P.S. Act against the appellant. and hence, the impugned judgment of conviction and sentence may be set aside and this Criminal Appeal may be allowed. 5. On the other hand, learned A.P.P. has submitted that the impugned judgment of conviction and sentence passed by the learned Court below is fit and proper and no interference is required from this Court. It is submitted that the appellant has been named in the F.I.R. and he was involved in the business of selling Ganja. It is submitted that the Informant-P.W.3 had supported his case and even the Seizure List witnesses, namely Nakul Saw and Suman Kumar Sahu, examined as P.W.1 and P.W.2 had proved their signature on the Seizure List, hence there is no illegality committed by the learned Court below by convicting the appellant and this Criminal Appeal may be dismissed. 6. Perused the Lower Court Records of this case and considered the submissions made by both the sides. 3 7. It transpires that the F.I.R. was lodged on 10.09.2001 under Section 20/22 of N.D.P.S. Act and 47 (A) Excise Act for recovery of 104 big and small pouches of polythene which contained illegal ganja from the Gumti of the appellant in the raid conducted on the same day, i.e. on 10.09.2001 8. It transpires that the police after completion of investigation, submitted chargesheet dated 31.07.2002 under Section 20/22 of the N.D.P.S. Act in the Court of the learned Chief Judicial Magistrate, Dhanbad and on 11.09.2002, learned Sessions Judge, Dhanbad took cognizance on 11.09.2002 for the offences under Section 20/22 of N.D.P.S. Act and 47 (A) of Excise Act against the accused-appellant and the case was transferred to the Court of Addl. Sessions Judge-3rd, Dhanbad. 9. Charge was framed against the appellant by the learned Additional Sessions Judge- 3rd, Dhanbad on 23.06.2003 under Section 20 of N.D.P.S. Act, to which he pleaded not guilty and claimed to be tried. 10. The prosecution, in support of its case, got examined Three (03) witnesses, who are as follows:- (1)P.W.1 is Nakul Saw, who is a seizure list witness (2)P.W.2 is Suman Kumar Sahu, (3)P.W.3 is Mahendra Nath Tiwari, the O/C-Informant of this case 4 11. The prosecution, in support of its case, got marked following documents as Exhibits, which are as follows:- (i) Ext. 1 is the Signature in the Seizure List, (ii)Ext. 2 is the Seizure List, (iii) Ext. 3 is the Self Statement, i.e. the written report of this case, (iv) Ext. 4 is the F.S.L. Report. 12. Neither any defence witness was examined nor any document was marked as Exhibit. 13. Thereafter, the appellant was examined under Section 313 Cr.P.C. on 27.07.2006 by the Addl. Sessions Judge-III, Dhanbad and to which he denied the circumstances put forth before him. 14. It also appears that the appellant was further examined under Section 313 Cr.P.C. on 15.06.2007 by the Special Judge, Dhanbad and to which he denied the circumstances put forth before him. 15. Thereafter, the learned Court below has convicted the appellnt for the offence under Section 20 of N.D.P.S. Act and sentenced him to undergo R.I. for two (02) years and directed him to pay a fine of Rs.1,000/-, hence, this Criminal Appeal has been filed. 16. So far as the oral evidence is concerned, P.W.1 is Nakul Saw, who is the seizure list witness and P.W.2, namely Suman Kumar Sahu, who is also a Seizure List witness, have been declared 5 hostile by the Prosecution and they have not supported the prosecution case and hence their evidence is not reliable. 17. P.W.3, namely Mahendra Nath Tiwari is the Informant of this case, however, evidence of P.W.3 is not corroborated from the evidence of P.W.1 and P.W.2 as they have been declared hostile. However, the informant- P.W.3 has tried to support his case. 18. It is further evident that the Investigating Officer of this case has not been examined and it has caused serious prejudice to the appellant. 19. It further transpires that the D.S.P.(Law & Order), Dhanbad had also not been examined on behalf of the prosecution, who was a Member of the Raiding Party and who had prepared the Seizure List. 20. It further appears that the Police Inspector, Kenduadih Anchal has not been examined by the prosecution and thus, due to non-examination of the D.S.P.(Law & Order), Dhanbad and the Inspector of Police, Kenduadih, Dhanbad, the defence of the appellant has been seriously prejudiced. 21. It further transpires that it is not clear from the evidence of P.W.3 as to when the seized narcotic substance were sent to the F.S.L. for its examination and the Informant has merely stated that the I.O. might have sent the seized material for its examination. Therefore, it is evident that the seized material was not produced by the Informant before the learned Court below at the first instance on 10.09.2001. 22. It is further evident that the accused- appellant was not arrested from the spot along with the 6 104 packets containing Ganja, rather appellant had surrendered on 21.09.2001 before the learned Court below, thus, nothing was recovered and seized from the possession of the appellant. 23. It is evident that prosecution has brought no evidence to the effect that the alleged Gumti, from where 104 packets containing Ganja was seized, belonged to this appellant and evidence of P.W.3 is not corroborated by any independent witness or any official witness. 24. Under the circumstances, in view of the facts and the discussions made above, judgment of conviction and sentence dated 15.06.2007, passed by Sri Ravi Kumar Sahay, learned Additional Sessions Judge-Ist- cum-Special Judge, Dhanbad in Special Case No. 26 of 2001 are set aside and the appellant, namely Subhash Gupta is acquitted for the offences under Section 20 of N.D.P.S. Act and he is discharged from the liability of his bail bonds. 25. Thus, this Criminal Appeal is allowed. Let the entire Original Lower Court Records be sent to the learned Court below at once. (Sanjay Prasad, J.) Jharkhand High Court, Ranchi Dated 19th June, 2024 N.A.F.R./s.m. 7