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2003 DIGILAW 302 (PAT)

Hira Sah v. Union Of India

2003-03-12

INDU PRABHA SINGH

body2003
Judgment I.P.Singh, J. 1. The sole appellant has been convicted under sections 20(b) (ii) and 23 of the Narcotic Drugs and Psychotropic Substances Act (for short N.D.P.S. Act) and sentenced to undergo rigorous imprisonment for ten years with a fine of Rs. 100000/- (one lac), in default, to undergo rigorous imprisonment for a further period of two years under section 20(b) (ii) (c) of the N.D.P.S. Act. 2. Prosecution case, in short, according to Sri Prem Kumar, Inspector, Customs (Preventive) Circle, Bettiah who lodged report before Sessions Judge, West Champaran Bettiah is that a secret information through a casual informer was received on telephone at about 20.00 hours on 14.2.01 regarding concealment of Ganja in the house of Sri Rameshwar Sah resident of village Jabdaul, Chanpatia P.S.The preventive party of Bettiah Customs comprising team of officers namely Sri D.P. Gupta, Supdt. Customs (P) Circle, Bettiah, Prem Kumar, Inspector Customs (P) Circle, Bettiah, Sri L.R. Tudu, Havaldar Customs (P) Circle, Bettiah Sri K. P. Raut, Sepoy, Customs (P) Circle Bettiah and others customs officers raided the house of Sri Rameshwar Sah at about 22.30 hours in presence of independent witnesses but nothing could be recovered. When the party was ready to return back in the meantime the informer again came and informed about the hut of Shri Hira Sah (appellant) in which Ganja was concealed. The raiding party searched the hut of accused Hira Sah at 23 hours in presence of two independent witnesses namely Bhola Sah and Usman Ali which revealed recovery of two gunny bags. The bags were opened and found to contain Ganja in nine packets. The appellant was asked to produce legal documents for its legal possession but he could not produce any document. The recovered Ganja was weighed in presence of two independent witnesses and the said Ganja was 50 Kg. net. It was seized under the provision of section 43 of the N.D.P.S. Act and after recording the statement of the appellant it is stated further that after getting consent of the Punches the seized Ganja and the appellant were brought to the Circle Office Customs (P) Bettiah for further interrogation under the provision of Section 67 of the said Act. Hira Sah accepted his guilt in both voluntary and interrogatory statement. Hira Sah accepted his guilt in both voluntary and interrogatory statement. Hira Sah stated that the Ganja in question belonged to one Sri Rameshwar Sah resident of village Jabdaul, who put the said Ganja forcibly 10 to 15 minutes before the search in his house. Rameshwar Sah was summoned under Section 67 of the N.D.P.S. Act by the Superintendent Customs (Prev.) Circle, Bettiah and interrogated by him on 10.4.2001 in which Shri Rameshwar Sah has stated that his house was searched by the Customs Officials Bettiah at 22.30 hours on 14.2.2001 but no recovery had been made. A representative sample from the seized Ganja was drawn for sending it to chemical experts for its purity test after observing the procedure of drawing of sample. On receipt of the prosecution report against accused Hira Sah along with interrogatory statement cognizance was taken against the appellant and the case was transferred to the Sessions Court for disposal where the trial concluded with the result as stated above. The appellant pleaded not guilty. 3. Prosecution in support of its case examined altogether 10 witnesses. P.W.1 is L.R. Tuddu, Havaldar (Custom), P.W.2 is Prem Kumar, Inspector in Custom (Informant), P.W.3 is Kali Pd. Raut, a constable in Custom, P.W.4 is Surendra Prasad Singh, his evidence has been expunged, P.W.5 is Tarakant Pd, Constable in Central Excise, P.W.6 is Paras Nath Gond, Custom Deptt., P.W.7 is Om Prakash Gupta, Constable in Custom, P.W.8 is Bhola Sao, P.W.9 is Devendra Pd. Gupta, Superintendent in Custom and P.W.10 is Ramdhyan Chaudhary, constable in custom deptt. The defence has also examined two witnesses D.W.1 is Surendra Tiwary and D.W.2 is Trilochan Dubey. 4. P.W. 2, the complainant has supported the case of prosecution. According to him on 15.2.2001 he was posted at Bettiah as Inspector, Custom. On that day of occurrence he received confidential information regarding concealment of Ganja. Having such information he organised a raiding party comprising a team of officers and raided the house of one Rameshwar Sah at about 20 hours in presence of independent witnesses but nothing could be recovered from there. When the raiding party was returning back in the meantime it was informed that in the house of appellant Hira Sah Ganja was concealed. The raiding party searched the house of the appellant in presence of two independent witnesses from where two gunny bags were recovered. When the raiding party was returning back in the meantime it was informed that in the house of appellant Hira Sah Ganja was concealed. The raiding party searched the house of the appellant in presence of two independent witnesses from where two gunny bags were recovered. The bags were opened and nine packets of Ganja were found. After weighing it was found 50 Kg. The same was seized under the provision of section 43 of the N.D.P.S. Act and the same was brought in the office of the Superintendent of Custom. He has stated that after getting the consent of Panches the seized Ganja was kept in the Malkhana. According to him appellant Hira was again produced before the Superintendent Custom Circle Bettiah for interrogation and his statement was recorded and thereafter he was forwarded in the judicial custody. The other witnesses P.Ws. 1, 3, 5, 6, 7 and 10 all have supported the version of P.W.2 complainant. P.W. 9, Devendra Pd. Gupta, Superintendent, Custom Circle Bettiah has supported the version of the complainant and stated that he recorded interrogatory statement of Hira. According to him he had written the interrogatory statement (Ext. 11) of Hira Sah, Ext. 11. He seized the article and kept in the Malkhana. In his cross examination he has admitted that the seized Ganja was sent to Gajipur (U.P.) Govt. Laboratory for chemical analysis. He has also stated that while the raid was conducted in the house of appellant he was also standing outside the house of Hira Sah. 5. Learned counsel for the appellant has submitted that from the evidence adduced before the court below the allegation of seizure of Ganja from the house of appellant has not been proved because except the complainant nobody has corroborated search and seizure from the house of the appellant. He has further submitted that no independent witness has been examined on behalf of the prosecution. It was further submitted that there is violation of section 55 of the N.D.P.S. Act as there was no evidence to prove that the seized article was actually Ganja, because the sampling of seized article was not done in presence of accused or seizure list witnesses. 6. It was further submitted that there is violation of section 55 of the N.D.P.S. Act as there was no evidence to prove that the seized article was actually Ganja, because the sampling of seized article was not done in presence of accused or seizure list witnesses. 6. From the deposition of P.W.2 who was Inspector Custom it appears that a Panchnama was prepared for the recovery of Ganja which was written by him on which the appellant Hira Sah and Bhola Sah (P.W.8) and one Usman Ali put their signatures. It also appears that three samples 25 Gr. each were prepared and kept in a envelop which was seized. From paragraph 3 of deposition of P.W.2, complainant it appears that the chemical report of seized article was received from Gajipur (U.P) Ext. 9. From Ext. 9 which is a report from Govt. Opium Alkaloid Works, Gajipur it appears that they received sample which was duly sealed. According to the report it was Ganja. As such, the submission of the learned counsel that even the article which was seized could not be proved to be Ganja is not acceptable in view of deposition of witnesses. However, it appears that the Ganja which was seized was not kept in Police Malkhana as required under the provision of section 55 of the N.D.P.S. Act and even the sample was sent by the Superintendent of Custom for the test to the Opium Factory Laboratory. Only P.W. 2 the complainant proved the case that two bags of Ganja weighing 50 Kg. was recovered from the house of the appellant. P.W.1 in his cross examination has stated that Ganja was recovered in his presence. P.W.3 has also stated that the Ganja was seized by the Inspector and Superintendent Custom but he did not know the name of person from whose house Ganja was recovered. P.W.9, the Custom Superintendent however supported that the Ganja was recovered from the house of appellant. On the question of non-compliance of the provision of section 55 of the N.D.P.S. Act learned counsel has relied on a decision in the case of Lal Babu Sah V/s. The State of Bihar ( 2002 (4) PLJR 93 ) in which it was held that the appellant convicted on the basis of sample taken from the article kept in Police Malkhana without any sealing or identification mark, conviction was not proper. But in this case the samples were properly sealed and kept in a envelop. As such this decision does not support the case of the appellant. In the present case of the prosecution there is clear non-compliance of the provision of section 55 of the N.D.P.S. Act which reads as follows: "55. Police to take charge of articles seized and delivered.An Officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station" According to the provision of section 55 an Officer-in-charge of Police Station shall take charge and keep in safe custody the seized article. This provision further requires that the dfficer who had brought such article shall be allowed to affix his seal and also to take sample which shall also be sealed with seal of the officer-in-charge of police station. 7 In this Act such mandatory provision has been made because there is heavy punishment if a person is found guilty of offences under this Act. This provision of keeping the seized article after affixing seal in safe custody of police station has been made mandatory so that there shad not be addition to the article so kept in the custody in order to falsely implicate a person. That apart this mandatory provision has involved officer-in-charge of P.S. to take charge of the article so seized and not any other officer subordinate to him, certainly not custom officers. 8. From the deposition of P.Ws. 2 and 3 it appears that the material so seized was kept in the godown of Custom Department which has itself vitiated the trial and only on this ground the conviction of the appellant is not sustainable and he deserves acquittal. Accordingly, conviction and sentence passed by the court below are set aside. It has been stated that the appellant is in jail. The appellant is directed to be released forthwith, if not wanted in any other case. Accordingly, conviction and sentence passed by the court below are set aside. It has been stated that the appellant is in jail. The appellant is directed to be released forthwith, if not wanted in any other case. Accordingly, this appeal is allowed.