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2002 DIGILAW 636 (PAT)

Angad Keshari v. State Of Bihar

2002-05-21

B.N.P.SINGH

body2002
Judgment B.N.P.Singh, J. 1. The sole appellant suffered conviction under section 17 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (In short NDPS Act) on being tried by the 2nd Additional Sessions Judge, Kaimur at Bhabhua, in Trial No. 27 of 1999 and was sentenced to serve rigorous imprisonment for a term often years and was also sentenced to pay a fine of Rs. One lac, in default of which, he was to undergo further rigorous imprisonment for a term of two years. 2. Salient features of the prosecution case was that on 8th August, 1994, while Sunil Kumar, Sub Inspector of Police, Mohania at about 9 a.m. was going alongwith other Police Officers and also constables for carrying a raid, and happened to reach near the shop premises of the appellant in village Samuhata, he came to know about heroin being sold there. The Police came in action, pursuant to which, the shop premises of the appellant was searched out where two persons were apprehended and on search of the premises, eight packets or heroin and Rs. 80/- were recovered from the shop. It was alleged that when the packets were weighed, it was four gms. From the search of other namely, Banarsi Mishra, one gram heroin and Rs. 60/- was recovered from his person. The offencing articles were eventually seized by the Police in presence or the witnesses for which a seizure memo was prepared and prosecution was accordingly launched against them. In course or investigation, the Police recorded statement of witnesses, visited the place or occurrence and on its conclusion, laid charge sheet before the Court. In the eventual trial, that commenced, the State examined altogether four witnesses including Ram Pravesh Singh (P.W.1) and Rang Bahadur Singh (P.W.2), who turned volte face to the State about seizure of any incriminating article in their presence from possession of the appellant, notwithstanding their signature on the seizure memo. The witnesses admitted the raid by the Police and they also admitted their signature on the seizure memo. 3. The other witness examined by the prosecution was Sunil Kumar (P.W.3), who set the Police in motion. He would reiterate his early version made before the Police about apprehension of the appellant in whose presence, there has been seizure of four packets of heroin and also money. 3. The other witness examined by the prosecution was Sunil Kumar (P.W.3), who set the Police in motion. He would reiterate his early version made before the Police about apprehension of the appellant in whose presence, there has been seizure of four packets of heroin and also money. He would also state about seizure of one packet containing heroin and also money from possession of another person for which seizure memo was prepared by him. The witness would state preparation of written report at the place or occurrence and also recording of first information report at the Police Station. The other witness examined by the State is Anant Kumar Singh (P.W.4), who happened to be the Investigating Officer of the case. He stated to have recorded statement of Sunil Kumar, Sub Inspector of Police and also visited the place of occurrence which was a grocery shop of the appellant. The witness would place on the record the report received from the Forensic Science Laboratory in respect of the contents allegedly seized from possession of the appellant and other, which eventually suggested the sample to be heroin, a derivative of morphine. 4. Various contentions were raised at Bar on behalf of the appellant and it is sought to be urged that though four witnesses were examined by the State, if evidences of seizure list witnesses were excluded from consideration, they having turned volte face to the State, there remains the evidence of only two witnesses on record, who were none else but the Police Officers and it was hazardous to place reliance on the testimony of the Police Officers alone to the exclusion of the independent witnesses. Failure of the Police Officers to comply with the provisions of Sections 42 and 50 of the NDPS Act, which was mandatory in nature, was also taken to be a ground to assail the propriety of the finding of the Investigating Officer. 5. The Court below, on appreciation of the provisions or law, negatived the contentions raised on behalf of the appellant about the alleged violation of the provisions of Section 50 of the NDPS Act, as the recovery was not from the person of the accused, rather it was from his premises. 5. The Court below, on appreciation of the provisions or law, negatived the contentions raised on behalf of the appellant about the alleged violation of the provisions of Section 50 of the NDPS Act, as the recovery was not from the person of the accused, rather it was from his premises. The seizure list witnesses were not considered to be credible by the Court below in withdrawing from the allegations about seizure of incriminating articles from possession of the appellant as they hail from the same village, and particularly when no explicit evidence was laid at trial about enmity of the appellant with Mukhiya at whose instance the prosecution was allegedly launched against the appellant. Non-production of the material exhibit at trial was also criticised by the learned counsel for the appellant to make the prosecution case incredible about seizure of offending article from his possession. Other contention raised at Bar was that since the investigation of the case registered under the provisions or the NDPS Act had not been taken up by an officer empowered under the Act, by issuance of Notification by the Central Government, the entire proceeding had vitiated. Reiterating the submission, it is urged that in view of the Notification No. S.O. 822 (E), dated November 14, 1985, published in the Gazette of India, Extra. Part II, Section 3 (ii), dated 14th November, 1985, the Central Government has empowered only the officers of the rank and above the rank or Inspector in the department of Central Excise Custom and Revenue Intelligence and in Central Economic Intelligence Bureau (and Narcotics Control Bureau) to exercise the powers and perform the duties specified in Section 42 within the area of their respective jurisdiction and hence investigation by a Police Officer, below the rank of Inspector was in explicit violation of the provisions of Section 42 of the NDPS Act which has vitiated the entire proceeding and reliance on this score has been placed on a decision of this Court reported in 2001 (2) PLJR 747 (Satyendra Pandey V/s. The State of Bihar) and also a decision of the Apex Court of the land reported in 2000 SCC (Cri) 496 (Abdul Rashid Ibrahim Mansuri V/s. State of Gujarat). 6. The Court is conscious that the case under consideration is that of economic offences which vitally affects stability of the nation and has to be curbed ruthlessly. 6. The Court is conscious that the case under consideration is that of economic offences which vitally affects stability of the nation and has to be curbed ruthlessly. Once it is found that the entire proceeding has vitiated due to violation of the provisions of the law, to keep the majesty of law above, justice has to be imparted by the Court. Having bestowed my anxious and deepest consideration to the evidences placed on the record and the facts and circumstances of the case, I find that legal infirmity has crept in the prosecution case in finding the appellant guilty by the Court below and the same is not sustainable in law which is accordingly set aside. The appellant is accordingly acquitted of the charges and is directed to be set at liberty forthwith if not wanted in any other case. The appeal thus succeeds.