Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 579 (PAT)

Anil Singh v. State of Bihar

2005-07-04

body2005
I.P. SINGH, J.:- The sole appellant has been convicted under Section 27(A) of the Narcotic Drugs and Psychotropic Substance Act (in short the Act) and has been sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/- and in default to pay the fine he will have to further undergo rigorous imprisonment for two years. 2. The prosecution case, in short, is that the informant Raj Kumar Singh, A.S.I. got an information that a boy aged about 25 to 30 years having a fair complexion was standing on the eastern gate of Hathua Market, Chapra for supplying smack to another party. This information was recorded in the police station diary and with the the permission of the Officer Incharge the informant alongwith other constable reached at the place as per the information. They saw the young boy as described and having seen the police party the accused started fleeing away. But, he was chased and apprehended and a search was conducted in presence of two independent witnesses, namely, Rajesh Kumar and Hariji prasad. On search a packet of smack was recovered from the left pocket of his full pant which was weighed from the balance of the vendor of puffed rice (bhunja) and total weight of the smack was found to be 45 grams. Accordingly, a seizure list was prepared with the signature of two independent witnesses at the place of occurrence. The appellant on interrogation disclosed that he was to deliver it to one Yogendra Prasad. Thereafter, on the written report of the informant the case was registered against the appellant and cognizance was taken. The case was committed to the Court of Session and finally the trial concluded with the result as indicated above. 3. The appellant pleaded not guilty and has stated that he has been falsely implicated in this case due to enmity. 4. The prosecution in support of its case has examined altogether 9 witnesses. P.Ws. 1 and 2 Rajesh Kumar and Hariji Prasad are the seizure list witnesses and both have been declared hostile as they have not supported the case of the prosecution. P.w. 3, Siyaram Singh and P.W. 4, Dhrub Rai are the constables. Both of them have accompanied the informant up to the place of occurrence. P.W. 5 Manoj Kumar has also been declared hostile. P.W. 6 is Ram Nath Prasad and P.W. 7 is Parmeshwar Dayal. P.w. 3, Siyaram Singh and P.W. 4, Dhrub Rai are the constables. Both of them have accompanied the informant up to the place of occurrence. P.W. 5 Manoj Kumar has also been declared hostile. P.W. 6 is Ram Nath Prasad and P.W. 7 is Parmeshwar Dayal. Their evidence are not related with the case. P.W. 8 Madhusudan Dey is the I.O. of this case. P.W. 9 is a formal witness who has proved the written statement written by the informant which has been marked as Ext. 2. PWs. 3 and 4 who are said to be the eye witnesses of the occurrence have supported the case that the appellant Anil was standing on the eastern gate wearing check shirt and a full pant. When he reached near Hathua Market alongwith the informant having seen them the appellant started fleeing away. On a chase he was apprehended. A search was conducted by Raj Kumar Singh and a red colour poly thin containing powdering substance was recovered from his full pant. The appellant disclosed his name. Both the witnesses identified the appellant in court also. 5. The other witness P.W. 8 is the I.O. of the case. He has proved the written report and seizure list Exts. 2 & 3. He has also given the description of the place of occurrence i.e. eastern gate of Hathua Market. He has further stated that he has sent sample for chemical analysis but the report was still awaited. He has stated that he has sent the sample for analysis but he did not make efforts to get the report and has also stated that he prepared the same pie on 4.9.2001 i.e. on the date of occurrence but due to pressure of work he could not send the same for chemical examination till 21.11.2001. 6. Learned counsel for the appellant has submitted that prosecution failed to observe the provision of Section 50 of the N.D.P.S. Act while in making search over the body of the appellant. It has been also submitted that provision of the Act under Section 42/55 are mandatory and there are catena of the decisions of the Supreme Court that non-compliance of the provision of the aforesaid Section vitiate the trial and also conviction. 7. It has been also submitted that provision of the Act under Section 42/55 are mandatory and there are catena of the decisions of the Supreme Court that non-compliance of the provision of the aforesaid Section vitiate the trial and also conviction. 7. It has been also stated that the search and seizure could not be proved since the independent witnesses of the seizure list did not support the case and recovery of substance from the possession of the appellant. It has been also pointed out that seized article was not sealed in proper manner there is no evidence that samples were properly sealed. As per the statement of I.O. the article so seized was sent for chemical examination after three and half months. This shows the slackness of prosecution. It has been further submitted that the prosecution failed to prove that the articles so seized was contraband narcotic substance. Since there is no chemical examination report as exhibit for the same. On the consideration of submissions (sic) appellant with the case is supported by PW. 3 and PW. 4 who are members of raiding party. According to these witnesses powderly substance recovered from the pocket of the pant of the appellant. From their evidence, it is clear that the appellant was not informed of his valuable right to be searched in presence of Magistrate or Gazetted Officer rather search was conducted by the informant (not examined) when the appellant was apprehended. 8. P.W. 2 Hariji Prasad & PW. 1 Rajesh Kumar, these two witnesses totally denied that the articles was seized in their presence. Anyway, it appears that the compliance of provision under Section 50 before conducting search was not properly followed by the informant which is mandatory under the Act. According to apex court only on non-compliance of Section 50 an accused deserves acquittal that apart the prosecution also failed to prove that the sample of material seized has been properly prepared and it was properly sealed. The conduct of the Investigating Officer, in sending the sample after three & half months of the seizure also shows that the investigation of the case was not conducted promptly and properly. Even the informant who apprehended the appellant was not examined and the prosecution thus could not prove its case beyond reasonable doubt. The non-compliance under Section 50 is in itself enough to vitiate the trial and the appellant deserves acquittal. Even the informant who apprehended the appellant was not examined and the prosecution thus could not prove its case beyond reasonable doubt. The non-compliance under Section 50 is in itself enough to vitiate the trial and the appellant deserves acquittal. 9. In view of the aforesaid, the appellant is acquitted of the charge levelled against him. The conviction and sentence awarded by the court below is hearby set aside. It has been further stated by the learned counsel for the appellant that this appellant is in custody. Accordingly, he is directed to be released forthwith if not wanted in any other case. The result, this appeal is allowed.