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2003 DIGILAW 402 (PAT)

Timal Raut v. State Of Bihar

2003-04-08

B.N.P.SINGH, S.N.JHA

body2003
Judgment S.N.Jha and B.N.P.Singh JJ. 1. The sole appellant of this appeal has been convicted under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act and sentenced to rigorous imprisonment for twenty years and fine of Rs. One lac. 2. The case of the prosecution is that on 6.2.96 at 6.30 a.m. Anil Kumar of village Nurakhap Nayatola within Bettiah Muffasil RS. of West Champaran district saw the appellant carrying Charas in two bags. He with the help of co-villagers tried to apprehend him. The appellant, however, fled and hid himself in a sugarcane field. He was finally apprehended and brought to the house of Vijay Kumar. On information S.I. Mahadeo Sah of Bettiah Muffasil P.S. came to the village and recorded the statement of Anil Kumar to the above effect at 10 a.m. He took custody of the appellant as well as the packets said to have been recovered from him. The pockets-five each in two bagswere opened by S.I. Mahadeo Sah in presence of the villagers. They were weighed and seizure memo was prepared. He recorded the statements of the witnesses, sent the articles to the Forensic Science Laboratory and on receipt of the report, observing other formalities, submitted chargesheet against the appellant thus putting him on trial. 3. At the trial the prosecution examined five witnesses. They are P.W. 1 Prakash Kumar Verma, RW. 2 Anil Kumar, the informant, P.W. 3 Satish Kumar, P.W. 4 Bhola Prasad and P.W. 5 Kalimul Rahman. Out of them P.Ws. 1 to 4 were examined on the point of occurrence, while P.W. 5 was examined as a formal witness to prove the seizure list. The appellant did not examine any witness in defence. At the end of the trial the trial court convicted the appellant and sentenced him in the manner stated at the outset. 4. Shri Umesh Chandra Verma, learned counsel for the appellant, submitted that the appellant was falsely implicated in the case on account of land dispute with Anil Kumar and others. There is no conclusive evidence that the article which was allegedly seized from the appellant was sent to the Forensic Science Laboratory and that what was subjected to chemical analysis was the article allegedly seized from the appellant. There is no conclusive evidence that the article which was allegedly seized from the appellant was sent to the Forensic Science Laboratory and that what was subjected to chemical analysis was the article allegedly seized from the appellant. Counsel pointed out that the Investigating Officer was now examined and, therefore, it is not known as to how the article seized by the police was dealt with after seizure. 5. Having gone through the evidence of the witnesses we find substance in the submission of the counsel for the appellant. 6. P.W. 1 in his evidence stated that he heard the shout and when reached the place he found that the appellant was being chased by the villagers. After the appellant was apprehended, he was subjected to search. He was carrying two plastic bags from which rod like articles were recovered which was Charas. The Charas was weighed to be 9 kgs. It is relevant to mention that this witness was not subjected to any cross-examination as the appellant was not represented by any lawyer. From the ordersheet of the trial court it appears that on his request Shri Gorakh Prasad was appointed by the court to defend him. The witnesses examined thereafter were cross-examined on behalf of the appellant. 7. P.W. 2 gave a similar version about the manner in which the appellant was apprehended from the sugar-cane field. On the point of recovery he stated that the bags carried by the appellant contained 5 plastic packets each. The bags were not opened until arrival of the police. It smelt of Charas. After the police arrived the packets were opened by the SI who confirmed that the article was Charas. It weighed 9 kgs. In para 6 he stated that Charas was taken away by the Officer incharge. In para 13 he clarified that Charas was taken away in bags in the same condition. 8. From the evidence of P.W. 3 it appears that the police party arrived at the place of occurrence after two and a half hours. Thereafter the packets were opened. They contained Charas. P.W. 4 in his evidence gave a somewhat similar evidence except that according to him the bags were not opened and they were handed over to the Officer Incharge. The Officer Incharge declared after looking at the bags that the article was Charas. Thereafter the packets were opened. They contained Charas. P.W. 4 in his evidence gave a somewhat similar evidence except that according to him the bags were not opened and they were handed over to the Officer Incharge. The Officer Incharge declared after looking at the bags that the article was Charas. P.W. 5, as mentioned above, was examined as a formal witness to prove the seizure list. 9. It may be mentioned here that the report of the Forensic Science Laboratory dated 15.10.96, which is the sheet anchor of the prosecution case, was marked Ext. 4 without formal proof even though the appellant objected to its submission. But we do not wish to go into this aspect, for, the appeal is fit to be allowed on a short ground. 10. There is no evidence on record to suggest as to what happened to the article which was allegedly recovered from the appellant and seized by the police on 6.2.96. Some article, no doubt, was sent to the Forensic Science Laboratory on or about 23.3.96 which on chemical examination was found to be Charas, but there is no evidence that the article which was found to be Charas was the same as was recovered from the police on 6.2.96. None of the prosecution witnesses spoke about sealing of the bags by the police officer on 6.2.96. Their evidence rather suggests that the packets were opened, portions thereof were examined by the police officer who declared it to be Charas. It was necessary that the police should have sealed the bags in presence of the witnesses and it cannot be said with confidence that the article which was sent to the Forensic Science Laboratory was the one allegedly recovered from the appellant. If the Investigating Officer had been examined in the case, some light would have been thrown on these aspects. In the absence of his evidence we are left guessing as to how the article recovered from the police was dealt. The seizure was effected on 6.2.96 but the article was sent to the Forensic Science Laboratory on or about 23.3.96 i.e. after six weeks. Apparently, it must have been kept in the Malkhana of the police station. The possibility of the container being mixed up with other similar looking article/container cannot be ruled out. The evidence on the point could have salvaged the prosecution case. Apparently, it must have been kept in the Malkhana of the police station. The possibility of the container being mixed up with other similar looking article/container cannot be ruled out. The evidence on the point could have salvaged the prosecution case. The absence of the same would enure to the advantage of the appellant. 11. The picture that we get from the evidence on record is that the police took away unsealed open bags of some article allegedly recovered from the evidence but there is no conclusive evidence that the same article was sent to the Forensic Science Laboratory for chemical analysis. The chemical analysis report (Ext. 4) therefore cannot be conclusive of the fact that it relates to the same very article. Having regard to the nature of the case the appellant cannot be convicted on the basis of oral evidence to the effect that some Charas looking article was recovered from his person. In the absence of reliable evidence that the article was a contraband, the conclusion is irresistible that the appellants conviction cannot be sustained. 12. 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. He is in custody. He is directed to be released forthwith, if not wanted in any other case.