Govind Sao, S/o Dhanuki Sao vs State of Jharkhand

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Jhk) 1027

IN THE HIGH COURT OF JHARKHAND AT RANCHI
Rongon Mukhopadhyay, Ambuj Nath, JJ.
Govind Sao, S/o Dhanuki Sao - Appellant
Versus
The State of Jharkhand - Respondent
Criminal Appeal (D.B.) No. 758 & 1153 of 2016
Decided On : 18-10-2022

Advocates:
Advocate Appeared:
For the Appellant :Mr. Arwind Kumar, Advocate
For the Respondent: Mrs. Nehala Sharmin, A.P.P.

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 17, 22, 19, 20, 21, 41, 42, (1), 43, 50 – Indian Penal Code, 1860 – Section 341, 323, 504, 34 – Criminal Procedure Code, 1973 – Section 313 - Opium was recovered - Appeal against conviction - Appeals arise out of a common judgment and order of conviction and sentence same are being disposed of by this common order – Held, As per self statement of informant (P.W.1) on a telephonic information which was entered in station diary a raid was conducted and one of appellants was apprehended. P.W.1 in his evidence has also reiterated what has been written down in his self statement - Station diary entry has not been exhibited by prosecution which would have indicated grounds of his belief if any as envisaged under proviso to Section 42(1) of NDPS Act - There is also no evidence on record to show that information taken down in writing or grounds of belief were sent to immediate superior of P.W.1 within 72 hours - Even if there is a delayed compliance with satisfactory explanation considering emergency or expediency of situation which may lead to escape of an offender same is acceptable but in absence of any explanation thereof same would be in violation of Section 42 of NDPS Act – Court come to conclusion that learned trial court had committed an error of law in not considering fact that entire facets of case fall within ambit of Section 42 of NDPS Act and not Section 43 of NDPS Act and since mandatory provisions of Section 42 of NDPS Act have not been followed, Court hereby set aside judgment of conviction - Appeals allowed.

JUDGMENT :

Heard Mr. Arwind Kumar, learned counsel for the appellant in Criminal Appeal (D.B.) No. 758 of 2016, Mr. Amit Kr. Choubey, learned counsel for the appellant in Criminal Appeal (D.B.) No. 1153 of 2016 and opposed by Mrs. Nehala Sharmin, learned A.P.P. for the State.

2. Since both these appeals arise out of a common judgment and order of conviction and sentence the same are being disposed of by this common order.

3. These appeals are directed against the judgment of conviction dated 16.07.2016 and order of sentence dated 20.07.2016 passed by Sri Anil Kumar Mishra, learned Additional Sessions Judge-XIV, Hazaribag in G.R. Case No. 33 of 2010, whereby and whereunder the appellants have been convicted for the offences punishable u/s 17 and 22 of the Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act) and have been sentenced to undergo R.I. for 10 years along with a fine of Rs. 1,00,000/-for the offence u/s 17 of the NDPS Act and R.I. for 10 years along with a fine of Rs. 1,00,000/-for the offence u/s 22 of the NDPS Act. Both the sentences are to run concurrently and in case of default in payment of fine they are to undergo R.I. for a further period of six months.

4. The self statement of Md. Rustam was recorded on 05.01.2010, in which, it has been stated that today i.e. 05.01.2010 at about 10:15 A.M. an information was received that from Rasoyiya Dhamna village three persons on a Hero Honda CD Deluxe motorcycle bearing registration no. JH-02-H-4496 were to go from Rasoyiya Dhamna to Dhanbad. After entering a station diary, he along with other Police officials had proceeded for village Rasoyiya Dhamna. They stationed themselves in front of Devi Mandap at GT road. At about 11:00 A.M., he saw a Hero Honda CD Deluxe motorcycle coming from Rasoyiya Dhamna and going towards Dhanbad. A signal was given to the riders to stop but they sped away and were followed by the Police party. After a chase all the persons started fleeing by leaving the motorcycle towards Rasoyiya Dhamna village and on chase one person was apprehended while the other two managed to flee away. On being asked the apprehended person disclosed his name as Raju Prasad Sao (appellant in Criminal Appeal (D.B.) No. 1153 of 2016) and had disclosed the names of the persons who had fled away as Govind Sao (appellant in Criminal Appeal (D.B.) No. 758 of 2016) and Bablu Sao. In presence of two independent witnesses the dickey of the motorcycle was searched and from a bag five white plastic polythenes were recovered and each bag contained 1 Kg. of liquid opium. No papers were produced with respect to the recovered opium. The apprehended accused had also disclosed that Govind Sao is the owner of the motorcycle. The seizure list was prepared in which the seizure list witnesses as well as the accused had put their signatures.

Based on the aforesaid allegations Barhi P.S. Case No. 09/2010 was instituted against three named accused persons for the offences punishable u/s 341, 323, 504/34 of the IPC and Sections 19, 20, 21 and 22 of the NDPS Act. On completion of investigation separate charge-sheet were submitted against Raju Prasad Sao and Govind Sao. Cognizance was taken on 20.03.2010 by the learned Special Judge for the offences u/s 341, 323, 504/34 of the IPC and Sections 19, 20, 21 and 22 of the NDPS Act. Charge was framed against both the accused u/s 17(b) and 22(b) of the NDPS Act which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

5. The prosecution has examined as many as seven witnesses in support of its case.

6. P.W.1 (Md. Rustam) was posted as an Officer-in-Charge, Barhi Police Station. On 05.01.2010 at about 10:15 A.M. he had received a telephonic information that three persons on a Hero Honda CD Deluxe motorcycle bearing registration no. JH-02-H-4496 were going towards Dhanbad for selling opium. After entering a Sanha he proceeded with a Police force and after reaching Rasoyiya Dhamna they waited nea