Patna High Court – Orders
Shailendra Kumar Sharma vs The Union Of India, Through The Director … on 7 April, 2026
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.930 of 2025
Arising Out of PS. Case No.-6 Year-2022 Thana- N.C.B (GOVERNMENT OFFICIAL)
District- Patna
======================================================
1. Shailendra Kumar Sharma son of Late Vidhya bhushan Sharma Resident of
village- Pema PS -Goh District- Aurangabad
2. Pintu Kumar son of Nanhku Yadav village- Dubri bigha, Ps- Sirdala, Dist-
Nawada
... ... Appellants
Versus
1. The Union of India, through the Director General, Narcotic Control Bureau,
New Delhi
2. The Narcotic Control Bureau, Patna Zonal Unit, Through the zonal Director,
D and E Block, 4th Floor Karpuri thakur Sadan, Rajiv Nagar, Patna
3. The State of Bihar
... ... Respondents
======================================================
Appearance :
For the Appellant/s : Mr. Harsh Vardhan, Advocate
For the Respondent/s : Ms. Parul Prasad, CGC
Ms. Shristi Singh, Advocate
Mr. Aditya Anand, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE NANI TAGIA
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY)
5 07-04-2026
Heard learned counsel for the appellants and learned
counsel appearing for the respondents on the prayer of
suspension of sentence and grant of bail to the appellants.
2. The present appeal is directed against the judgment
of conviction dated 25.06.2025 and order of sentence dated
27.06.2025 passed by the court of learned Exclusive Special
Court, NDPS-II, Patna in connection with Special (NDPS) Case
No. 96 of 2022 (NCB Patna Zonal Unit Crime No. 06 of 2022)
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whereby both the appellants have been found and held guilty for
the offences punishable under Sections 20(b) (ii) (C) and 29 of
the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as “NDPS Act“) and convicted
accordingly. The appellant no. 1 Shailendra Kumar Sharma has
further been found and held guilty for commission of offence
punishable under Section 25 of the NDPS Act and convicted
accordingly. Thereby the appellants have been sentenced as
follows:-
Appellant Substantive For offence Fine
punishment punishable under
NDPS Act
Shailendra Kumar 12 years R.I. U/s 20(b) (ii) (C) Rs. two lakhs
Sharma 12 years R.I. U/s 29 Rs. two lakhs
12 years R.I. U/s 25 Rs. two lakhs
Pintu Kumar 12 years R.I. U/s 20(b) (ii) (C) Rs. two lakhs
12 years R.I. U/s 29 Rs. two lakhs
In case of default in payment of fine, there is a
stipulation of six months simple imprisonment. All the sentences
have been directed to run concurrently.
3. The prosecution case is based on the complaint
petition of the complainant Ram Ayodhaya Kumar (PW-5),
Junior Intelligence Officer, NCB, Patna Zonal Unit. As per
prosecution case, PW-1/ Shiv Pujan Prasad received a secret
information from reliable source that the truck bearing Regn. No.
BR-26-GB2411, loaded with huge quantity of Ganja, is coming
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from State of Orissa via Simdega, Jharkhand, Aurangabad and
Daudnagar and it would reach Patna on 26.02.2022 in between
02 hours to 04 hours. On the basis of said information, PW-
4/Rajan Kumar, Superintendent, NCB, constituted a team of
NCB officials comprising of P.W. 1/Shiv Pujan Prasad, PW-2/
Varun Kumar, PW-3/ Deepak Kumar and others. It is further
alleged that the truck in question was intercepted and 193 kg.
Ganja was recovered from the truck in question and appellants
and one Nitish Kumar were apprehended at the place of
occurrence.
4. Learned counsel for the appellants submits that the
provision of search and seizure have not been maintained rather
violated on every step of proceedings and the material exhibits of
the case have not been produced before the trial court. Learned
counsel further submits that the prosecution has not produced
and proved the residue of the sample sent for the chemical
examination. The material alleged to have been kept in NCB
Malkhana has been destroyed without permission of the trial
court and provision of Section 41 of the NDPS Act has not been
complied. Learned counsel further submits that the concerned
court, while passing the judgment of conviction and order of
sentence, has not taken into account all the discrepancies and
convicted the appellants. All the witnesses are official witnesses
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and there is no independent witness. However, appellants are in
judicial custody since 27.02.2022 and four years have already
elapsed. Learned counsel further submits that there are several
discrepancies and inconsistencies in the evidence of prosecution
witnesses and, hence, the appellants deserve suspension of
sentence and grant of bail. Learned counsel for the appellants has
also raised a question that appellants along with one Nitish
Kumar had been apprehended at the place of occurrence, but said
Nitish Kumar has been set free.
5. Learned counsel appearing for the NCB vehemently
opposed the prayer of suspension of sentence and prayer of bail
and submits that there is huge recovery of Ganja from the truck
in question and both the appellants were apprehended at the place
of occurrence and there is recovery of 193 kg. Ganja which is
nine times more than the prescribed minimum commercial
quantity. Learned counsel further submits that appellant no. 1 is
owner and appellant no. 2 is driver of the truck in question.
Learned counsel for the NCB has clearly stated that it has already
been explained by the prosecution witnesses that how Nitish
Kumar has been set free and how the independent witness has
not been examined. Learned counsel further submits that P.W. 1,
P.W. 2 and P.W. 3 were the members of the raiding team and they
were present at the place of occurrence and they have
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consistently supported the story of prosecution. Learned counsel
further submits that judgment of conviction and order of sentence
passed by the trial court is justified and legal and there is no
reason to differ from the findings of the concerned court as the
trial court has taken into account all the details how the
appellants have committed the crime, the recovery of huge
quantity of Ganja from the truck in question and both the
appellants were apprehended at the place of occurrence. Hence,
appellants do not deserve suspension of sentence and grant of
bail.
6. From perusal of the record, it appears that P.W.1,
PW-2 and PW-3 were members of raiding team and their
statements are quite consistent on the core aspect of story of
prosecution. Further, appellant No.1, who is the registered owner
of the truck in question and appellant No. 2, who is the driver of
the truck in question, were apprehended at the place of
occurrence and 193 kg. of Ganja was recovered from the truck in
question.
7. Before considering the aforementioned rival
submissions, it is necessary to take note of a recent decision
passed by the Supreme Court in case of Preet Pal Singh Vs.
State of U.P. reported in (2020) 8 SCC 645 which has
distinguished the considerations germane for grant of bail under
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Section 439 of Criminal Procedure Code in case of pre-trial
arrest and suspension of sentence under Section 389 (1) of the
Cr.P.C., post conviction. Paragraphs 35 and 36 of the said
decision reads as under:
35. There is a difference between grant of bail
under Section 439 CrPC in case of pre-trial arrest
and suspension of sentence under Section 389 CrPC
and grant of bail, post conviction. In the earlier case,
there may be presumption of innocence, which is a
fundamental postulate of criminal jurisprudence, and
the courts may be liberal, depending on the facts and
circumstances of the case, on the principle that bail is
the rule and jail is an exception, as held by this Court
in Dataram Singh v. State of U.P. [Dataram Singh v.
State of U.P., (2018) 3 SCC 22:
(2018) 1 SCC (Cri) 675] However, in case of post-
conviction bail, by suspension of operation of the
sentence, there is a finding of guilt and the question of
presumption of innocence does not arise. Nor is the
principle of bail being the rule and jail an exception
attracted, once there is conviction upon trial. Rather,
the court considering an application for suspension of
sentence and grant of bail, is to consider the prima
facie merits of the appeal, coupled with other factors.
There should be strong compelling reasons for grant
of bail, notwithstanding an order of conviction, by
suspension of sentence, and this strong and
compelling reason must be recorded in the order
granting bail, as mandated in Section 389(1) CrPC.
36. In Vinod Singh Negi v. State of U.P. [Vinod Singh
Negi v. State of U.P., (2019) 8 SCC 13 : (2019) 3 SCC
(Cri) 262], this Court set aside the impugned order
[ Umesh Sharma V State of U.P., 2018 SCC Online all
5338] of suspension of sentence and grant of appeal
as the order was devoid of reasons.
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8. Further, in case of State (NCT of Delhi) v. Lokesh
Chadha reported in (2021) 5 SCC 724, the Supreme Court has
held that where a trial has ended in order of conviction, the High
Court, when suspension of sentence is sought under Section
389(1) of the Code of Criminal Procedure, must be duly
cognizant of the fact that a finding of guilt has been arrived at by
the trial judge at the conclusion of the trial. Though, the High
Court is not deprived of its power to suspend sentence under
Section 389(1) of the Code of Criminal Procedure, it may do so
for sufficient reasons which “must have a bearing on the public
policy underlying the incorporation of Section 37 of the N.D.P.S.
Act. Paragraph 9 of the said decision is relevant and is being
reproduced hereinbelow:
9. While considering the rival submissions, we
must at the outset advert to the manner in which the
learned Single Judge [Lokesh Chadha v. State, 2020
SCC OnLine Del 1723] of the High Court has dealt
with the application for suspension of sentence under
Section 389(1) CrPC. The offence of which the
respondent has been convicted by the Special Judge
arises out of the provisions of Sections 23(c) and 25-A
of the NDPS Act. The findings of the learned Special
Judge which have been arrived at after a trial on the
basis of evidence which has been adduced indicate
that the respondent who was a proprietor of a courier
agency was complicit with a foreign national in the
booking of two parcels which were found to contain
325 gm of heroin and 390 gm of pseudoephedrine.
Section 37 of the NDPS Act stipulates that no person
accused of an offence punishable for the offences
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under Section 19 or Section 24 or Section 27-A and
also for the offences involving a commercial quantity
shall be released on bail, where the Public Prosecutor
opposes the application, unless the Court is satisfied
“that there are reasonable grounds for believing that
he is not guilty of such offence and that he is not likely
to commit any offence while on bail”. Where the trial
has ended in an order of conviction, the High Court,
when a suspension of sentence is sought under Section
389(1) CrPC, must be duly cognizant of the fact that a
finding of guilt has been arrived at by the trial Judge
at the conclusion of the trial. This is not to say that the
High Court is deprived of its power to suspend the
sentence under Section 389(1) CrPC. The High Court
may do so for sufficient reasons which must have a
bearing on the public policy underlying the
incorporation of Section 37 of the NDPS Act.”
9. Considering the facts and circumstances of the case,
submissions advanced on behalf of both the parties and in the
light of the provision under Section 37 of the N.D.P.S. Act, the
law laid down by the Supreme Court in case of Preet Pal Singh
(supra) and Lokesh Chadha (supra), the appellants have not
made out a prima facie case for suspension of sentence and grant
of bail. Accordingly, prayer for suspension of sentence and grant
of bail to the appellants stands rejected.
10. It is clarified that the observation made
hereinabove are prima facie and tentative in nature for the
purposes of consideration of the prayer of the appellants for
suspension of sentence and grant of bail and shall not cause any
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prejudice to either of the parties at the time of hearing of the
main appeal.
(Nani Tagia, J)
(Alok Kumar Pandey, J)
K.C.Jha/shahzad
U T