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2000 DIGILAW 535 (PAT)

Kashi Sah v. State Of Bihar

2000-04-04

S.N.PATHAK

body2000
Judgment 1. JUDGMENT :- This appeal is directed against the judgment and order of conviction and sentence dated 26th September, 1999, passed by Sri Ramjee Pandey, 3rd Additional Sessions Judge, Bhabhua in Trial No. 117/97 under Sec. 17 of N.D.P.S. Act. The appellant was sentenced to undergo rigorous imprisonment for ten years and to pay a firm of Rs. one lac and, in default, to undergo rigorous imprisonment for two years. 2 The case of the prosecution is that the informant (P.W. 2) along with some other police personnels were going to investigate a case and is course of their track to village Mahwari, they chanced to see the accused appellant near the bridge situated in Village Griyadih-Durgavati moving in a suspicious condition. This person was asked to halt but the latter tried to run towards south. However, he was chased and arrested. Several persons gathered out of whom in presence of two persons, the person of the suspicious man was searched and allegedly 5 grams of heroin were seized from his possession. Subsequently, the accused was prosecuted and after submission of the charge-sheet, he faced trial. 3. The accused denied the charge and alleged false implication. 4. The prosecution examined in all five witnesses out of whom P.W. 2 was the informant. P.Ws. 1 and 4 were the members of the raiding party who were police personnels. P.W. 5 was I.O. P.W. 3 was a seizure list witness who was declared hostile, although he admitted his signature on the seizure list. The expert of the Forensic Laboratory was not examined though his report (Ext. 5) was exhibited. 5. On the basis of the aforesaid evidence, the learned Additional Sessions Judge convicted and sentenced the accused appellant. He has discussed the evidence and criticism advanced against the same by the accused lawyer in the lower Court. In this connection, the criticism that there was no compliance of Sec. 50 of N.D.P.S. Act was not by the Special Judge on the ground that since there was chance seizure, there was no occasion for these police officers to intimate any Magistrate in this connection and to include him in the raiding or search. This argument of the Special Judge is of course valid. This argument of the Special Judge is of course valid. But, however, the safeguards of such seizure under the N.D.P S. Act as laid down from Sec. 51 to Sec. 57 have been waived by the police officers and the learned Special Judge opined that these provisions are not mandatory. But I am of the opinion that the learned Special Judge faulted in this connection because in the first place the rules applicable to such seizure made under the Code of Criminal Procedure are also included in the search and seizure made under the N.D.P.S. Act. Over and above the same, the safeguards as provided under the N.D.P.S. Act are more elaborate because the punishment under the aforesaid Act is stringent and, therefore, the safeguards have to be followed in order to make such seizure a reliable one. In this connection, the mandate is that seized articles should be immediately sealed and signed by Searching Officer and sample taken from the same must also be sealed and signed immediately at the spot and a copy thereof be furnished to the accused. None of these safeguards as laid down under the aforesaid Act has been adopted by searching police Officer nor there is an explanation to the same by the said Officer. Moreover, the case of the prosecution regarding seizure was that 5 grams of opium were seized. However, the seized article itself was not produced in Court and evidence was that one gram was sent to theForensic Laboratory, but what happened to the rest of the quantity of opium seized was not explained from the evidence on record. So the report of the Forensic Laboratory which was connected with the alleged seized article was also not evidenced by any reliable and cogent materials on the record. In the aforesaid circumstances, it was incumbent on the part of the prosecution to prove that of course the report of the Forensic Laboratory was with respect to one gram of sample separated from the seized five grams of opium from the possession of the accused. Non-production of the remaining four grams in Court also made it doubtful whether the report (Ext. 5) of the expert of the Forensic Laboratory was of course connected with these articles. The seizure list witnesses having been declared hostile and other seizure list witnesses not having been examined, further created doubt regarding alleged seizure. Non-production of the remaining four grams in Court also made it doubtful whether the report (Ext. 5) of the expert of the Forensic Laboratory was of course connected with these articles. The seizure list witnesses having been declared hostile and other seizure list witnesses not having been examined, further created doubt regarding alleged seizure. The expert himself was not examined. This was further lacuna in the evidence of the prosecution. The learned Special Judge has opined that the seizure list witness P.W. 3 admitted his signature and, therefore, his denial of seizure was not worthy of any significance. In this connection also, the learned Special Judge perhaps failed to notice the fact that police officer is in a position to obtain signature of any person on any piece of paper. 6. So the circumstances on the record were sufficient to throw prosecution case into doubt and, therefore, the evidence on the record was not sufficient to prove the charge against the accused. 7. In the result, this appeal is allowed and the order of conviction and sentence is set aside. If the accused is in custody, he shall be released forthwith if not required in any other case.Appeal allowed.