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2002 DIGILAW 907 (PAT)

Lal Babu Sah v. State Of Bihar

2002-08-20

S.N.JHA, T.P.SINGH

body2002
Judgment S.N.Jha, J. 1. The sole appellant has been convicted under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act and sentenced to rigorous imprisonment for 14 years and fine of Rs. 1 lac or, in default of fine, imprisonment for two years. He has also been convicted under Section 22 of the Act but no separate sentence thereunder has been passed. 2. The prosecution case, shortly stated, is that SI Amar Nath Tiwari, Officer Incharge of Raxaul GRPS was on duty along with police force at Raxaul Railway Station at the time of arrival of Gandak Express on M.G. Platform No. 3 on 29.10.1999 at 8.15 A.M. He saw the appellant entering bogie no. 7882 from the opposite side with bag in his hand. Getting suspicious he entered the bogie. Seeing him and the police party the passenger tried to escape. He was however caught by the police party. Search of the bag yielded recovery of nine bags in markin cloth containing articles which appeared to be Charas. The appellant disclosed that it was brought by one Manoj Sah Sonar of Raxaul from Hitonda Town Nepal and intended to be taken to Kanpur. 3. On the basis of his self statement to the above effect at 9.15 AM SI Amar Nath Tiwari instituted Raxaul PS Case No. 14/99 under Sections 20/21 of the NDPS Act and entrusted investigation of the case to S.I. Dahari Ram. Dahari Ram did not do anything. The investigation was later entrusted to SI Yogendra Prasad who after completing the formalities submitted chargesheet against the appellant and he was thus put on trial. 4. At the trial the prosecution examined seven witnesses to prove its case including said Dahari Ram as PW 3, Amar Nath Tiwari as PW 4 and Yogendra Prasad as PW 7. Two Constables Arbind Kumar Mishra and Ram Naresh Rai one of whom was tendered, were examined as PWs 5 and 6. The prosecution also examined the seizure witnesses namely Rahim Mian and Uday Singh as PWs 1 and 2.They however turned hostile and did not support the prosecution case. At the end of the trial the trial court convicted and sentenced the appellant as indicated above. 5. The prosecution also examined the seizure witnesses namely Rahim Mian and Uday Singh as PWs 1 and 2.They however turned hostile and did not support the prosecution case. At the end of the trial the trial court convicted and sentenced the appellant as indicated above. 5. Shri Uma Kant Shukla, learned counsel for the appellant, submitted that the appellant has been convicted for being found in possession of Charas on the basis of seizure of certain article but there is no conclusive evidence to show that the articles seized from the appellants possession was Charas or any other contraband article. He referred to the evidence of informant Amar Nath Tiwari that the seized article was kept in the Malkhana of the Police Station on 29.10.1999. The sample was taken after 40 days on 8.12.1999 by the Successor Investigating Officer i.e. Yogendra Prasad when the appellant was in custody i.e. in his absence. He submitted that even if this aspect of the case regarding taking of sample in appellants absence is ignored there is no evidence that the sample was taken from the same packet which had been seized from the appellants possession. The informant in his evidence admitted the fact that he did not see the packets again after depositing them in the Malkhana. In the absence of any identification by Amar Nath Tiwari or any other person in whose presence the article had been seized it cannot be said that the packet from which samples was taken was the same packet which had been seized from the appellants possession. Counsel submitted that presence of similar looking packets containing contraband items deposited in the Malkhana of the PS cannot be ruled out. Besides, admittedly no seal had been put on the packets at the time of deposit in the Malkhana and therefore chance of tampering cannot also be ruled out. Counsel contended that in the circumstances there has been gross violation of the provisions of Section 55 of the NDPS Act and the appellants conviction therefore cannot be sustained. He placed reliance on Khet Singh vs. Union of India, (2002) 4 SCC 380 . 6. In the facts and circumstances of the case, the submissions of the counsel for the appellant appear to be well founded. He placed reliance on Khet Singh vs. Union of India, (2002) 4 SCC 380 . 6. In the facts and circumstances of the case, the submissions of the counsel for the appellant appear to be well founded. Section 55 of the NDPS Act contemplates that after the article is produced at the Police Station it should be kept in safe custody by the Officer Incharge pending orders of the Magistrate if any. In the instant case, though the article was supposedly kept in the malkhana of the Police Station, there is nothing to show that seal was put on the packets or that the packets bore or were given identification marks. Sample was thus taken from some unidentified and unsealed packet(s). In fact the I.O. (PW 7), who took the samples does not claim that the samples were taken from the same packet(s) which had been seized by Amar Nath Tiwary, understandably because the packets were not identified by Amar Nath Tiwari, who rather admitted that he did not see the packets after depositing them in the Malkhana. In the absence of any positive evidence to suggest that the samples were taken from the same packets which were seized from the appellants possession I have no manner of doubt that the appellant has suffered prejudice vitiating his conviction. Where the prosecution rests on the report of the Forensic Laboratory on the basis of sample which cannot be conclusively linked with the articles seized from the accuseds custody it is un-understandable as to how he can be convicted on the basis of such report. The onus to prove that the accused was in possession of narcotic etc. is on the prosecution. Only then presumption under Section 54 of the NDPS Act can be drawn and onus shifts to the accused. Considering the gravity of the offence, minimum sentences prescribed under the Act, the prosecution is required to conclusively prove possession of narcotic etc. with the accused. In the case of Khet Singh (supra) the Supreme Court observed that guidelines of the Bureau of Narcotics should be followed, and thus the sample should be taken in the same transaction. In the instant case sample was taken after 40 days. with the accused. In the case of Khet Singh (supra) the Supreme Court observed that guidelines of the Bureau of Narcotics should be followed, and thus the sample should be taken in the same transaction. In the instant case sample was taken after 40 days. The articles seized from the appellants possession not having been kept in "safe custody" as envisaged under Section 55 of the NDPS Act, and in the absence of any evidence that the sample was taken from the same packets I have no doubt in my mind that the conviction cannot be sustained. In Gurubux Singh vs. State of Haryana, (2001) 3 SCC 28 , the Supreme Court held that the provisions of Section 55 are directory and violation thereof ipso facto does not vitiate trial or conviction, but has a bearing on the appreciation of evidence regarding seizure of the article. On facts of the case which were more or less similar to the present case, the conviction was set aside. 7. In the result, the appeal is allowed, the conviction and sentence awarded to the appellant are set aside and he is acquitted of the charge. The appellant is in custody. He is directed to be released forthwith if not wanted in any other case. T.P.Singh, J. 8 I agree.