Union of India v. Badri Prasad Shivhare and others) arising out of N.C.B. Crime No
Case Details
Court No. - 86 Case :- CRIMINAL APPEAL No. - 3044 of 2024 Appellant :- Shiv Kumar Savita Respondent :- Intelligence Officer Narcotics Control Bureau Counsel for Appellant :- Arvind Kumar,Shyam Sunder Mishra Counsel for Respondent :- Ashish Pandey With Case :- CRIMINAL APPEAL No. - 2475 of 2024 Appellant :- Badri Prasad Shivhare And Another Respondent :- The Union Of India And Another Counsel for Appellant :- Ashutosh Yadav,Shyam Lal Counsel for Respondent :- A.S.G.I.,Ashish Pandey,R.P.S. Chauhan
Legal Reasoning
Hon'ble Nalin Kumar Srivastava,J. Order on Appeals 1. The above two connected Criminal Appeals under Section 374 (2) of the Criminal Procedure Code have been preferred by the appellants - Shiv Kumar Savita, Badri Prasad Shivhare and Shivram Shivhare against the conviction and sentence recorded vide judgment and order dated 6.3.2024 passed by Addl. District Judge / Fast Track Court (New), Chitrakoot in Special Session Trial No.75 of 2013 (Union of India Vs. Badri Prasad Shivhare and others) arising out of N.C.B. Crime No.06 of 2013, under Section 8/20 N.D.P.S. Act, Police Station Kotwali Karwi, District Chitrakoot. 2. Admit. 3. Trial court record has been received. 4. Office is directed to prepare the paper book. 5. List both the Appeals in its due course. Order on Criminal Misc. Bail Applications / Suspension of Sentence Applications 1. Heard learned counsels for the appellants-applicants, learned A.G.A. for the State as well as learned counsel for the complainant. 2. By means of the bail applications, the appellants-applicants seek suspension of sentence / grant of bail. 3. On 23.12.2013, a complaint was filed by the Intelligence Officer of Narcotics Control Bureau against the accused appellants and three other persons with the allegation that on 26.5.2013, raid was conducted in the godown of Arun Kumar Gupta situated in Pyarelal Colony, Baldauganj Kashai Road, Karwi, Chitrakoot and 15.3 Kg. and 8.7 Kg. marijuana (Ganja) was found. 4. It has been submitted by learned counsel for the appellants- applicants that the appellants are innocent and have falsely been implicated. It has been further submitted that the conviction and sentence imposed by the learned trial Judge is against the weight of evidence on record. The trial court has misread the evidence on record and convicted the appellants. The prosecution has not been able to prove its case beyond reasonable doubt. It has been further submitted that the maximum sentence awarded to the appellants is of 10 years under Section 8/20 of N.D.P.S. Act. It is further submitted that the whole prosecution story regarding the alleged recovery of narcotics contraband (Ganja) is false and fabricated. The present appellants were not arrested in the godown where from the narcotics substances is said to be recovered by the N.C.B. Officers. It is also submitted that no compliance of Section 50 of the N.D.P.S. Act has been made in letter and spirit by the concerned authorities. It is also submitted that as per prosecution version, three packets were recovered which were kept in a plastic sack, but the sample was not taken before the Magistrate as provided under Section 52-A of the N.D.P.S. Act which is a mandatory provision. The sample taken on spot by the N.C.B. officials certainly vitiates the whole prosecution and trial. It is also submitted that P.W.1 in his examination-in-chief has admitted that the packets containing the recovered narcotics substance as well as the sample and other documents were produced before the Magistrate on 27.5.2013 whereas the samples had already been taken on 26.5.2013 on spot as per the complaint filed by the Department. It is also submitted that the appellant Badri Prasad Shivhare is a disable man having 40% of disability. It is also submitted that the sentence awarded to the appellants is against the settled law. It is also submitted that the appellants have no criminal history to their credit. They are detained in jail since 5.3.2024 and their appeals are likely to take some time for disposal. It is also submitted that the appellants have no concern with the alleged contraband which is said to be recovered from the godown of appellant Shivram Shivhare. It is also submitted that the appellants were on bail during trial and they have never misused the said liberty. In support of their contentions, learned counsel placed reliance on the following decisions of the Hon'ble Supreme Court : (i) Atul Alias Ashutosh Vs. State of Madhya Pradesh, (2024) 3 Supreme Court Cases 663. (ii) Mohammed Khalid and Another Vs. State of Telangana, 2024 STPL 2935 SC. (iii) Bhagwan Rama Shinde Gosai and Others Vs. State of Gujarat, (1999) 4 Supreme Court Cases 421. (iv) Yusuf @ Asif Vs. State, 2023 STPL 12804 SC (v) Simarnjit Singh Vs. State of Punjab, 2023 0 Supreme(SC) 658 5. Per contra, learned counsel for the N.C.B and learned counsel for the Union of India have vehemently opposed the bail applications and it has been submitted that the accused appellant Badri Prasad Shivhare was the tenant in the godown wherein the narcotics contraband was kept and subsequently recovered by the Narcotics Department. It is further submitted that right of the accused appellants to make a search before the Magistrate was informed to them and in that way compliance of the provisions of Section 50 of the N.D.P.S. Act was made on spot. It is also submitted that not only the Ganja, but Bhaang was also sold without any license by the appellant Badri Prasad Shivhare from the shop of any other person. It is also submitted that 24 Kgs. of illegal Ganja was recovered from the possession of accused appellants Badri Prasad Shivhare and Shiv Kumar Savita. It is also submitted that the recovered narcotics contraband was sent for chemical examination and the F.S.L. Report supports the prosecution version. It is also submitted that the said recovered narcotics contraband falls within the category of more than commercial quantity. The accused appellants cannot take benefit of the Notification No.1 of 1989 and the parameters for grant of bail in cases under the N.D.P.S. Act are different from that of cases under the Indian Penal Code or any other law. 6. I have considered the rival submissions made by learned counsel for the parties and gone through the entire record including the impugned judgment. 7. In the facts and circumstances of the case and also considering the ratio of the judgments relied upon by the learned counsel for the appellants as mentioned here-in-above regarding the compliance of the mandatory provisions pertaining to the N.D.P.S. Act, the period of incarceration, sentence awarded to the appellant, the evidence available on record and the findings recorded by the trial court thereon and the fact that the appeal is not likely to be heard before completion of entire period of sentence and it pertains to the year 2024, without further commenting on the merits of the case, I am inclined to release the appellants-applicants on bail. 8. Let appellants-applicants Shiv Kumar Savita, Badri Prasad Shivhare and Shivram Shivhare, convicted and sentenced in Special Session Trial No.75 of 2013 (Union of India Vs. Badri Prasad Shivhare and others) arising out of N.C.B. Crime No.06 of 2013, under Section 8/20 N.D.P.S. Act, Police Station Kotwali Karwi, District Chitrakoot, be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned. 9. On acceptance of bail bonds and personal bonds, the trial court shall transmit photostat copies thereof to this Court for being kept on record. 10. Half of the fine amount, as imposed by the trial Court, shall be deposited by the appellants-applicants within a period of two months from the date of their release and remaining half fine amount shall remain stayed. Order Date :- 22.7.2024 ss