Calcutta High Court (Appellete Side)
Binod Yadav @ Binod Kumar Yadav vs Unknown on 5 March, 2026
46
05-03-2026
(Court NO. 8)
KOLE
266045
CRA (DB) 408 of 2025
with
IA No. CRAN 1 of 2025
In re: Applications for suspension of sentence under Section 389 of
the Code of Criminal Procedure/Section 430 of the BNSS filed on
21.11.2025 in connection with Burdwan Police Station Case No.
262 of 2023 dated 28.02.2023 under Sections 21(c)/25/29 of the
NDPS Act.
-And-
In the matter of : Binod Yadav @ Binod Kumar Yadav
.... Appellant.
Mr. Biswajit Mal,
... for the appellant.
Mr. Ranabir Roy Chowdhury,
Ms. Rita Dutta,
... for the State.
Dictated by Arijit Banerjee, J:-
In Re: CRAN 1 of 2025:
1.
The petitioner was convicted with another person under
Sections 21(c)/25 and under Sections 21(c)/29 of the NDPS Act,
1985 and was sentenced to suffer imprisonment for ten years. He
says that he is in custody for three years. He prays for suspension
of sentence.
2. Learned Advocate for the petitioner says that although there
were two independent witnesses to the alleged seizure of the
contraband goods, none of them was examined by the prosecution.
Out of 19 charge sheet named witnesses only 5 were examined.
Learned Advocate relies on a decision of the Hon’ble Apex Court in
the case of Naresh Kumar @ Nitu-vs.-State of Himachal Pradesh
reported in (2017) 15 SCC 684 as well as a decision of a Division
Bench of this Court in the case of Harun Rasid-vs.-State of West
Bengal & Anr., reported in 2005 (2) Cal LT 262, in support of his
submission that if there are independent witnesses to the seizure,
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they have to be examined. Otherwise, an adverse presumption will
be drawn against the prosecution.
3. Learned State Advocate while opposing the prayer says that
over four thousand bottles of phensedyl syrup were recovered from
the accused persons who were in charge of two trucks. In view of
such huge quantity of contraband being involved, the prayer of the
petitioner should not be allowed. However, in his usual fairness,
learned Advocate admits that none of the two independent
witnesses to the seizure was examined by the prosecution.
4. Non-examination of at least one of the two independent
seizure witnesses would be fatal to the prosecution case as has
been held by the two judgments referred to above. Hence, we find
that the petitioner has a highly arguable case for acquittal at the
hearing of the appeal and the restriction in Section 37 of the NDPS
Act stands rebutted.
5. Hence, we are inclined to allow this application for
suspension of sentence.
6. Accordingly the appellant, namely, Binod Yadav @ Binod
Kumar Yadav, shall be released on bail upon furnishing bail bonds
of Rs.25,000/- (Rupees Twenty Five Thousand) each, with two
sureties of like amount each, one of whom must be local, to the
satisfaction of learned C.J.M, Purba Bardhaman and on further
condition that the appellant shall not leave the geographical limits
of Kolkata Municipal Corporation except for the purpose of
attending court proceedings and on further conditions that the
appellant shall meet the Inspector-in-Charge of the Chetla police
station once in a fortnight until further orders and further that the
appellant shall be personally present or be represented before this
Court when the appeal is taken up for hearing.
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7. The operation of the order of conviction and sentence shall
remain suspended till disposal of the appeal or until further orders,
whichever is earlier. We also stay the operation of payment of fine
till disposal of the appeal.
8. The Department is directed to forward a copy of this order
to the Superintendent of the concerned Correctional Home for
immediate release of the applicants/appellants unless he is wanted
in connection with any other case.
9. We clarify that the observations made by us in this order
are only for the purpose of disposing of the application for
suspension of sentence and the same shall have no relevance at the
final hearing of the appeal.
10. The application for suspension of sentence is, thus,
disposed of.
11. Criminal Section is directed to supply urgent photostat
certified copies of this order to the parties, if applied for, upon
compliance of all necessary formalities.
( Apurba Sinha Ray, J. ) ( Arijit Banerjee, J. )