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2003 DIGILAW 320 (PAT)

Rajendra Prasad v. State Of Bihar

2003-03-23

MRIDULA MISHRA, R.N.PRASAD

body2003
Judgment Ram Nandan Prasad, J. 1. The sole appellant has preferred this appeal against the judgment and order dated 15.9.2003/16.9.2003 whereby the appellant has been convicted for the offence u/s. 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 hereinafter referred to as N.D.P.S. Act and sentenced to undergo rigorous imprisonment for 15 years and to pay a fine of Rs. 1,00,000.00 (one lac), and in case of default of payment of fine he has to undergo rigorous imprisonment for two years. He has also been convicted for the offence under Sec. 22 of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for 15 years and to pay a fine of Rs. 1,00,000.00 (one lac), and in case of default of payment of fine, he has to undergo rigorous imprisonment for two years. However, he has not been found guilty of the charge u/s. 23 of the N.D.P.S. Act and has been acquitted of the said charge. 2. Bimlesh Chand Sinha, Sub-Inspector of Police of Bettiah Police Station is informant in this case. He recorded the fardbeyan on his own statement stating therein that on 12.1.2002 he along with Assistant Sub-Inspector of Police Harendra Nath Rai, Homeguard constables Upendra Ram, Yogendra Ram, Dhruvnath Prasad and driver of Government Jeep bearing No. BR-22A/4444 Mohan Yadav were on patrolling duty with effect from 8 a.m. At about 1.30 p.m. when he reached near Station Chowk he saw a person with three bags moving speedily towards station seeing the police party. He followed him and on chase he caught hold of him. On inquiry he disclosed his name as Rajendra Prasad and stated that he was going to Muzaffarpur along with the bags containing ganja. However, he could not produce any valid document to carry ganja. He seized all the three bags covered with plastic in presence of the witnesses and prepared a seizure list in presence of Rajeshwar Singh and Bhim Kumar Yadav, who put their signatures on the seizure list. Rajendra Prasad accused also put his signature on the seizure list. A copy of the seizure list was also handed over to him. He also disclosed that he is a member of Homeguard. The seized article was weighed and 18 kg. of ganja was found. On the basis of the aforesaid fardbeyan a formal FIR was drawn. Investigation was taken up. A copy of the seizure list was also handed over to him. He also disclosed that he is a member of Homeguard. The seized article was weighed and 18 kg. of ganja was found. On the basis of the aforesaid fardbeyan a formal FIR was drawn. Investigation was taken up. On completion of investigation charge-sheet was submitted against Rajendra Prasad. On receipt of the charge-sheet cognizance was taken by the Sessions Judge and the case was transferred to 2nd Additional Sessions Judge for trial. The trial Court convicted the appellant, as indicated above. However, the appellant was acquitted for the offence u/s. 23 of the N.D.P.S. Act. The defence of the appellant was that there was agitation of Homeguard Jawans of Bettiah Unit in the month of December, 2001 and in order to disperse the agitation the Bettiah town police including the informant resorted to lathi-charge on them in which he also received injury. He was convener of Homeguard organization at Bettiah. The informant had also threatened him and on account of the said reason he has falsely been implicated in this case. 3. The prosecution in support of its case has examined 10 witnesses. PW 1 and PW 2 are witnesses to the seizure and have been declared hostile. PW 8 is a hotel owner and he has also been declared hostile. PWs 3, 5 and 6 are Homeguard constables and PW 4 is driver of the jeep and they have been declared hostile. PW 7 is informant and PW 9 is Investigating Officer. PW 10 had produced the seized articles in the Court. 4. It is, thus, obvious from the analysis of the witnesses that PW 7, the informant, has supported the prosecution case and PW 9 investigated the case and submitted charge-sheet. PW 10 had brought the seized articles from Malkhana and produced in the Court. Independent seizure list witnesses PW 1 and PW 2 have been declared hostile. PW 8 is also an independent witness and he has also been declared hostile. The rest of the witnesses are member of the raiding party and they have also been declared hostile. Therefore, the prosecution case hinges upon the evidence of solitary witness of PW 7, who is the informant and an official witness. PW 8 is also an independent witness and he has also been declared hostile. The rest of the witnesses are member of the raiding party and they have also been declared hostile. Therefore, the prosecution case hinges upon the evidence of solitary witness of PW 7, who is the informant and an official witness. It is well established rule of law that testimony of such witness is not to be doubted and discarded merely on the ground that he happens to be an official witness but it is equally well recognised rule of law that the Court should look for independent corroboration to the testimony of official witness in such case. Keeping in mind the aforesaid well established rule of law we proceed to examine the evidence of PW 7. PW 7 is Sub-Inspector of Police. He recorded the fardbeyan of his own statement. His evidence is that on the relevant date and time he was posted at Bettiah Police Station and Yoganand Singh was officer-in-charge of police station. He along with an Assistant Sub-Inspector of Police Harendra Nath Rai, PW 9, and armed forces were on patrolling duty at the relevant time. They were on jeep. When they reached near the Bettiah station chowk he found a person in suspicious condition moving ahead with two bags on the shoulder and one hag in the hand. He along with his party followed him and caught him near a hotel. On inquiry he disclosed that the bags contained ganja. He seized the bags containing ganja in presence of independent witnesses. On further inquiry he disclosed his name as Rajendra Prasad. The bags were opened in which 18 kg. ganja was found. He prepared seizure list, Ext. 2, In cross-examination the witness stated that investigation was given to Harendra Nath Rai, Assistant Sub-Inspector of Police, PW 9, who was also a member of the raiding party. His further statement was recorded by the Investigating Officer. He stated before the Investigating Officer that recovery was made in presence of local witnesses. He gave details of the place of occurrence and stated that near about the place of occurrence there were several shops. He himself caught the accused. About 10-15 minutes after arrest of the accused a seizure list was prepared. He has knowledge to recognize the narcotics, such as ganja bhang, hasish etc. The said article was weighed in his presence. He gave details of the place of occurrence and stated that near about the place of occurrence there were several shops. He himself caught the accused. About 10-15 minutes after arrest of the accused a seizure list was prepared. He has knowledge to recognize the narcotics, such as ganja bhang, hasish etc. The said article was weighed in his presence. The seizure list was prepared and the witnesses also signed on the seizure list. He, however, stated that there was no special mark on the bag. The colour of the two bags was green and grey but he did not remember the colour of the third bag. The seized article was not before him in the Court. The ganja was in plastic hag but had no special mark. He opened the plastic bag and took out some quantity of ganja. However, he did not seal the bag. He did not take any sample from the said bag. He himself kept the seized article in jeep and handed over it to the officer-in-charge, Yoganand Singh (not examined). However, no paper with respect to handing over the said article was prepared. He denied the knowledge with respect to agitation by the Homeguard constables. PW 9 is Investigating Officer. He admitted that he was member of the raiding party. The recovery of the article was made in his presence. Seizure list was prepared in presence of PW 1 and PW 2. The recovered article was weighed in his presence but he did not remember the quantity of the seized article. At the place of occurrence the fardbayan was recorded by PW 7 on his own statement. He took the seized ganja and the appellant to the police station. There a formal FIR was drawn and investigation was given to him. In cross-examination the witness reiterated the evidence in chief. He also state that there were shops near the place of occurrence. He was not known to the shop-keepers. He could not say the colour of the bags. They were rexin bags. There was no special mark on the bags. The bags which were recovered and seized were not before him in the Court. He recorded the statement of the witnesses including the seizure list witnesses. He recorded the statement of the seizure list witnesses at the place of occurrence. They were rexin bags. There was no special mark on the bags. The bags which were recovered and seized were not before him in the Court. He recorded the statement of the witnesses including the seizure list witnesses. He recorded the statement of the seizure list witnesses at the place of occurrence. However, he was not aware that he being an eye-witness could not investigate the case. The seizure list was prepared in his presence but he cannot say how many copies of the seizure list were prepared. The informant had interrogated the appellant. He took the sample from the Malkhana and kept it in three plastic dabba. The sample was taken about two months after the seizure. In the meantime, the seized articles were kept in Malkhana. He has no knowledge of the entry of the articles in the register of Malkhana. The samples were sealed. However, there was no special mark on the seal, nor any sample was kept with him. The sample was sent for chemical examination through Literate constable Subhash Singh. He was not in possession of any paper in support of the receipt of the sample in the office of the Forensic Science Laboratory. He submitted charge-sheet. He had no knowledge that the accused was a Homeguard constable. He has written in the diary that the seized articles were sent for chemical examination through constable but he did not mention the name or number of the constable. PW 10 is a Constable posted at Bettiah police station. He produced three bags, one made of cotton and two made of nylon, in the Court. The colour of one bag was maroon and the second was blue and the third was matmila (dusty). 5. It is evident from the discussion of the evidence that the witness did not say that the sample was taken from the bags which were recovered from the possession of the appellant. PW 7, in fact, has not said a word that the sample was taken from the bags seized from the appellant. It has been stated by the witnesses that three bags were seized from the possession of the appellant but nothing has been brought on the record to show that sample was taken from the seized bags and the same was sent for chemical examination. It has been stated by the witnesses that three bags were seized from the possession of the appellant but nothing has been brought on the record to show that sample was taken from the seized bags and the same was sent for chemical examination. PW 7 has stated that he seized three bags from the possession of the appellant and they were handed over to the Officer-in-charge of the police station Yoganand Singh but there is nothing in the evidence that those bags were kept in safe custody and sample was taken from the said seized article and was sent for chemical examination. PW 9, no doubt, admitted that he took sample from the Malkhana but there is no evidence that it was kept by the Officer-in-charge and he took the possession of the seized article from PW 7 and kept in the Malkhana in sealed cover. PW 9 in his evidence has admitted that he took sample from the Malkhana but he did not seal the bag. He, however, stated that samples taken were kept in three plastic containers and were sent for chemical examination but has admitted in his evidence that he took sample after two months of the seizure of the article. Ext. 6 is report of the chemical examination dated 24.6.2003. The sample is said to have been taken on 4.3.2003 i.e. after two months of the seizure of the article on 12.1.2002. Moreover, PW 7 has stated that one bag was of green colour, second was of grey colour and he did not remember about the colour of the third bag. However, the witness stated that there was no special mark on the bags. PW 9 stated in his evidence that there was no special mark on the bags. The seizure list, Ext. 2, mentions the colour of the three bags, one being green, another being red blue and the third of mixed colour. The seized article was produced by PW 10 at the end of the trial i.e. after about a year of seizure. He had given a different picture of the bags. He has stated that one was cotton bag, other two were nylon bags. Further, it appears that the colour mentioned in Ext. 4, the forwarding note, is different from the colour mentioned in Ext. 2. He had given a different picture of the bags. He has stated that one was cotton bag, other two were nylon bags. Further, it appears that the colour mentioned in Ext. 4, the forwarding note, is different from the colour mentioned in Ext. 2. It is thus obvious that prosecution has failed to establish that article seized was sealed and kept in proper custody and that very article was sent for examination, besides the article was sent for examination after much delay from the seizure and produced in the Court at the fag end of trial. In the case of Valsala V/s. State of Kerala, AIR 1994 SC 117 , the Apex Court has held that in the case of delay of more than three months in sending seized article to Court, no evidence to show that article was sealed and kept in proper custody in police station, and the very article seized was sent to chemical examiner is highly doubtful, the conviction cannot be sustained. On consideration as discussed above, we find that the prosecution has failed to prove. 6. The witnesses examined on behalf of the prosecution have stated that three bags containing ganja were seized from the possession of the appellant. It was weighed and found to be 18 kg. The sample was taken and sent to Forensic Science Laboratory for examination. After examination report was submitted that it was ganja, Ext. 6. sec. 2(iii)(b) of the N.D.P.S. Act defines ganja and it says that ganja is flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated. sec. 2(xiv) defines "Narcotic drug" and it says "Narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs. Item (xxiii) defines "psychotropic substance" and it says "psychotropic substances" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or materials included in the list of psychotropic substances specified in the Schedule. Obviously, the ganja seized from the appellant is neither narcotic drug nor psychotropic substance. sec. 20 of the N.D.P.S. Act deals with punishment for contravention in relation to cannabis plant and cannbis. Sub-sec. (8) of sec. Obviously, the ganja seized from the appellant is neither narcotic drug nor psychotropic substance. sec. 20 of the N.D.P.S. Act deals with punishment for contravention in relation to cannabis plant and cannbis. Sub-sec. (8) of sec. 20 provides punishment for possession of lesser quantity than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. The Central Government has specified the small quantity, commercial quantity of narcotic drugs or psychotropic substance vide S.O. 1055(E), dated 19th of October, 2001. Ganja has been mentioned in item No. 55. The small quantity has been specified 1000 gm. and commercial quantity has been specified 20 kg. The evidence has come that the article seized from the possession of the appellant was weighed and it was 18 kg. i.e. lesser than the commercial quantity but greater than small quantity. The appellant has been convicted for the offence u/s. 20(b) of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for 15 years and to pay a fine of Rs. 1,00,000.00 (one lac), which is apparently against the sentence prescribed under Sec. 20(b) of the N.D.P.S. Act as the article seized from the possession of the appellant was less than the commercial quantity. Similarly, the appellant has been convicted for the offence u/s. 22 of the N.D.P.S. Act, which deals with the punishment with regard to psychotropic substance. It has already been stated that the article seized from the possession of the appellant was ganja which does not come within the meaning of psychotropic substance as mentioned in item (xxiii) of sec. 2 of the N.D.P.S. Act. sec. 22 deals with punishment for contravention in relation to psychotropic substance. Thus, the conviction and sentence of the appellant under the aforesaid section is bad in law. Therefore, the conviction and sentence awarded to the appellant is illegal on account of the reasons mentioned above. Moreover, the prosecution has failed to established its case beyond all reasonable doubts. 7. Thus, this appeal is allowed, the judgment and order of conviction is hereby set aside. The appellant, who is in jail, is directed to be released forthwith, if not required in any other case.