Court No. - 13
Case :- CRIMINAL APPEAL No. - 5404 of 2017 Appellant :- Girja Shankar Singh Respondent :- State Of U.P.
Counsel for Appellant :- Ishan Deo Giri Counsel for Respondent :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
(Criminal Misc. Bail Application No. 312541 of 2017) This application for bail has been moved by accused for being released on bail during pendency of appeal which has been filed against the judgment and order dated 24.8.2017 passed by Additional Sessions Judge/FTC, Court No. 7, District Mirzapur in Special Sessions Trial No. 110 of 2009 (State Vs. Girja Shankar Singh) arising out of case Crime No. 292 of 2007 P.S. Haliya, District Mirzapur, whereby the accused appellant has been convicted and awarded punishment under Section 8/20 of NDPS Act of 10 years rigorous imprisonment fine of Rs. 1,00,000/- and in default of payment of fine 1 year additional simple imprisonment.
Learned counsel for the appellant contends that the accused has been falsely implicated and has been wrongly held guilty by the court below. He remained on bail through out trial and never misused the liberty. It is stated that the prosecution's case is that, accused was found cultivating Ganja on his land, who was indicated to be of accused by the informer and thereafter, police party had tried to arrest him. He ran away from the spot and, subsequently, he had surrendered. It is argued that he was not got identified properly as he was not arrested on the spot. The land on which he is alleged to be cultivating Ganja belongs to five persons as per the Khatauni filed by the learned counsel for the appellant. It cannot be said that he was the sole owner of the said land, hence, accused may not be held to be the sole owner & occupant of the said land on which the alleged crop of Ganja was being cultivated. It is further argued that the prosecution's case is that 18kg dried Ganja and 80 kg Green Ganja was recovered from him and its weight was found to be 98 kg, in all, on the spot and, hence, it was found to be nearly five times the commercial quantity of Ganja which is improper because as per the definition of Ganja given in under Section 2 (iii)(b) of NDPS Act, it has been defined as the flowering or fruiting tops of the cannabis excluding the seeds and leaves.
It is argued that the Green Ganja which contains the whole plant, has been weighed and added towards counting the whole weight, which is improper. Further, it is stated that the prosecution's version is that in five sacks total crop was kept out of which, in two sacks 18 kg dried Ganja was kept in 'Bhusaual' while in three sacks Green Ganja was kept which weighed 80 kg. Further, it is stated that prosecution has brought a case that from these sacks 100 grams of contraband substance was taken out to be sent to the FSL for being tested, whether it was Ganja. It is not clarified as to from which sacks this 100 grams was collected and was found to be Ganja. Further, it is argued that PW-1 S.P. Chauhan, who is witness of fact, has stated before the court that the sacks in which these contraband substance was kept had been eaten away by a mouse, hence, it is clear that it was not safely kept. The two public witnesses namely, Keshava and Vishnu in front of whom the alleged recovery had been made, have not been examined.
In rebuttal learned A.G.A. has vehemently opposed the bail and has stated that cultivation of Ganja was being done by the present accused, hence, it cannot be said that he was not responsible for this cultivation and court below has rightly held him guilty for cultivating the crop of Ganja on his land.
In view of above arguments of both the sides, this Court is of the view that looking to the fact that accused remained on bail through out trial and never misused the liberty; the land is admittedly joint land and not in exclusive possession of the accused on which it is being alleged that Ganja was being cultivated, its sole possession may not be attributed to the accused; as regards sample taken it is also not clear as to whether it was taken from all the sacks. All these infirmities in this case indicate that this case may result in acquittal.
Learned A.G.A. has admitted that accused has no previous criminal history, hence, it may be believed that if he is granted bail, he may not commit the same offence again. Therefore, in view of two mandatory criteria laid down in Section 37 NDPS Act, this case is found to be a fit case for bail.
Accordingly, Criminal Misc. Bail Application No. 312541 of 2017, is allowed.
Let the accused- Girja Shankar Singh be released on bail on his furnishing a personal bond of Rs. 75,000/- and two sureties of the like amount to the satisfaction of the court concerned.
On acceptance of the bail bonds and personal bond, the lower court shall transmit the photostat copies thereof to this Court for being kept on record of the instant Criminal Appeal.
The applicant-appellant is directed to deposit 50% of the fine awarded by the court below within one month from the date of his release on bail. Remaining 50% of fine shall remain stayed during the pendency of the appeal. In default of payment of fine, the bail granted to the applicant-appellant shall stand automatically cancelled.
Office is directed to prepare paper book within three weeks for final hearing.
List thereafter.
Order Date :- 28.11.2017 A.P. Pandey