Ashok Kumar Singh Vs State of Jharkhand

2025:JHHC:10439

Cr. Appeal (S.J.) No.890 of 2007

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[Against the judgment and order of conviction dated 06.07.2007 and sentence dated 09.07.2007 passed by learned Sessions Judge, West Singhbhum at Chaibasa in G.R. Case No.63 of 1995]

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Ashok Kumar Singh, Son of Shri Shiv Chandra Singh @ Kari Singh resident of Village-Baro, P.S. Barauni, Dist. Begusarai/Bihar

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.... .... …. Appellant

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Versus The State of Jharkhand .... .... .... Respondent ------ For the Appellant : Mr. B.M. Tripathy, Sr. Advocate M/s. Nutan Sharma, Advocate Mr. Naveen Kr. Jaiswal, Advocate For the State : Mrs. Nehala Sharmin, S.P.P.

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PRESENT

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HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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JUDGEMENT

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------ CAV On 24/01/2025 Pronounced On: 04/ 04 /2025

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Per-Pradeep Kumar Srivastava

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The present appeal is directed against the judgment and order

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of conviction dated 06.07.2007 and sentence dated 09.07.2007 passed by learned Sessions Judge, West Singhbhum at Chaibasa in G.R. Case No.63 of 1995 whereby and whereunder, the sole appellant has been held guilty for the

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offence under section 20(b) of Narcotic Drugs and Psychotropic Substance Act, 1985 and sentenced to undergo R.I. of 5 years with fine of Rs.50,000/- and in default payment of fine amount, he was further sentenced R.I. of 2 years.

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FACTUAL MATRIX

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Factual matrix giving rise to this appeal is that the prosecution case is based on the written report of one Santosh Kumar, A.S.I. Sadar, P.S. Chaibasa (Sadar) before Officer-in-Charge, Chaibasa Sadar Police Station stating therein that during course of patrolling in Assembly Election on 02.02.1995 at about 1:00 AM, he was checking the vehicles, meanwhile, one bus bearing Reg. No.OSJ-401 was stopped for checking then one person was apprehended along with one briefcase(attache) under suspicious circumstances. It is alleged that the said attache was opened and then it was found containing 2 ½ kg of ganja and the apprehended person disclosed his name as Ashok Kumar(appellant).

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On the basis of self written statement of the informant, F.I.R. was registered for the offence under section 47 of Excise Act but later on, charge-sheet was submitted for the offence under section 20 of N.D.P.S. Act. The accused denied the charges and claimed to be tried.

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In the course of trial, altogether 5 witnesses have been

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examined by the prosecution namely:-

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P.W.1 Yogendra Prasad Singh, Inspector of Police, formal in nature P.W.2 Ram Kaul Prasad P.W.3, Ashok Kumar Yadav, both members of the Raiding Party belonging to the Department of Police P.W.4 Khokhan Kumar Rakshit

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P.W.5 Pasupati Choudhary, formal in nature.

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Apart from oral testimony of the witnesses, following

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documentary evidences have been adduced:

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Ext.1 is the FIR

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Ext.2 is the seizure list Ext.3 is the written report Ext.4 is formal FIR Ext.5. is search-cum-seizure list Ext.6 is charge-sheet Ext.7 is F.S.L. Report and Ext.8 is Supplementary Charge-sheet under section 20(b) of N.D.P.S. Act.

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The accused after conclusion of trial has been held guilty and sentenced as stated above, which has been assailed in this appeal.

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Learned senior counsel for the appellant assailing the impugned judgment and order of conviction and sentence of the appellant has argued that learned trial court has failed to consider that due to non-examination of Investigating Officer, the defence has seriously been prejudiced. Out of 5 witnesses examined in this case, P.W.1 is a formal witness and P.W.4 is a bus passenger, who have not supported the prosecution case. Two seizure list witnesses namely Mani Ram Mundri and Kundkuli Giri have also not been examined during trial to prove the recovery of alleged ganja from possession of the appellant. The attache, which was found containing ganja, has also not been brought on record and proved to belong to the appellant. P.W.2 Ram Kaul Prasad and P.W.3 Ashok Kumar Yadav, who are constables have also failed to prove any recovery of ganja from the possession of the appellant and have not identified him behind the dock. P.W.5 Pasupati Chaudhary has only conducted partial investigation of the case. It is further submitted that no independent witness has been examined among the public or the passengers, who were

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travelling in the said bus. There is no credit worthy credence to establish the guilt of the appellant. The appellant has never claimed to have any briefcase or attache with him rather he was arrested on the basis to suspicion, which never culminated into legal evidence against him. Learned trial court has over looked the prosecution evidence as regards possession of the contraband with the appellant in any manner and arrived at wrong conclusion. Therefore, the impugned judgment and order of conviction and sentence of the appellant is liable to be set aside, allowing this appeal.

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On the other hand, learned Special Public Prosecutor for the State defending the impugned judgment and order of conviction and sentence of the appellant has submitted that there is direct evidence against the appellant that he was apprehended with an attache while travelling in bus which was intercepted during Assembly Election time on 02.02.1995. The prosecution has further proved that the seized materials were recovered from conscious possession of the appellant, and were sent to FSL, Ranchi and the report (Ext.7) is also available, which fortifies that the seized material was found to be ganja. The appellant has offered no valid explanation regarding possession of the said illicit ganja nor he has offered

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any valid defence or has been able to demolish the prosecution case in cross-examination of the witnesses. Therefore, there is no illegality or infirmity in the impugned judgment and order calling for any interference in this appeal, which is devoid of merits and fit to be dismissed.

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I have gone through the record of the case along with the impugned judgment and order in the light of contentions raised on behalf both side.

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It appears that in order to substantiate the charges leveled against the appellant, altogether 5 witnesses were examined by the prosecution.

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P.W.1 Yogendra Prasad Singh, Inspector of Police ,

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who has simply stated that a seizure list of this case is in the handwriting of S.I. Santosh Kumar, which is marked as Ext.2 and categorically admitted that in connection with this case, he has conducted no proceeding.

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P.W.4 Khokhan Kumar Rakshit has been declared

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hostile by the prosecution and he has categorically stated in his presence, nothing was recovered and he has no knowledge about the occurrence. He came for his evidence on notice of the court.

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P.W.5 S.I. Pasupati Choudhary. He is also a formal

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witness, who has proved the signature of S.I. Santosh Kumar on written report as Ext.3 and formal FIR as Ext.4. He has also proved the signature of A.S.I, U. Singh, who was Investigating Officer of this case. Admittedly, this witness was not a member of raiding party nor involved in conducting investigation of this case but he has stated about contents of FIR and what has been done by I.O. during the investigation. There is no reason as to how and under what circumstances, this witness was permitted to be examined in this case. Therefore, this witness was not cross-examined by the defence and his testimony is absolutely absurd for the purpose of consideration.

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P.W.2 Ram Kaul Prasad is constable and a member of

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raiding party. According to his evidence, on 02.02.1995 at about 1:00 AM, he along with other four constables and inspector, Santosh Kumar were engaged in maintaining law order during Assembly Election near J.M. Chawk, Chaibasa. He has further deposed that in course of checking of Prakash Roadways Bus, one boy alighted with a briefcase then on suspicion, the briefcase was opened, which was found containing 2 ½ kgs ganja. The boy disclosed his name as Ashok

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Kumar Singh. The ganja was handed over to sub-inspector, which, which was seized by him.

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In his cross-examination, he clearly admits that he was

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never interrogated during the investigation rather for the first time, he is deposing before the court. He cannot tell the colour of attache, which was borne by the accused. The driver and the cleaner of the said bus were not apprehended and interrogated. He has also admitted that he is not an expert of ganja/opium.

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P.W.3, Ashok Kumar Yadav is another constable and member of the raiding party. He has also stated that during the check of the Prakash Roadways Bus, one boy bearing a suitcase was alighting, which was checked on suspicion then 2 ½ kgs of ganja was found. The boy disclosed his name as Ashok Kumar, then this witness handed over the ganja to S.I. Santosh Kumar, which was seized by him. The suitcase or ganja is not present before him at present.

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From the above evidences, it is crystal clear that except P.W.2 and P.W.3, who were member of raiding party, no other witnesses have been examined by the prosecution. Although, the material exhibit has been proved to be ganja but there is no concrete evidence that the appellant was found with a

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briefcase containing ganja. No seizure list witness has been examined. The informant and Investigating Officer of this case have also not been examined. The suitcase allegedly belonging to the appellant has also not been brought on record and never produced during trial of the case. Therefore, the conviction of the appellant for such serious offences cannot be sustained on scanty evidences available on record. It is trite that the severely punishable offence requires higher standard of concrete proof to establish the guilt beyond reasonable doubt. In the instant case, there is no sufficient evidence to prove the charge under NDPS case against the appellant beyond all reasonable doubt. Learned trial court has swayed upon the testimony of two raiding party members without corroboration from evidence showing complicity of the appellant in the alleged offence. Therefore, the impugned judgment and order of conviction and sentence of the appellant is not justified under law and is liable to be set aside.

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Accordingly, the judgment and order of conviction dated 06.07.2007 and sentence dated 09.07.2007 passed by learned Sessions Judge, West Singhbhum at Chaibasa in G.R. Case No.63 of 1995 is hereby, set aside and this appeal is allowed.

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