Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 1088 (PAT)

Pramod Sah v. State Of Bihar

2006-11-17

CHANDRA MOHAN PRASAD

body2006
Judgment Chandra Mohan Prasad, J. 1. This appeal is against the judgment dated 19.7.04/20.7.04 of the Special Judge, Madhepura passed in G.R. Case No. 540 of 01 (arising out of Bihariganj PS. Case No. 23/01), whereby the appellant has been convicted under Sec.20 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to undergo R.I. for five years and a fine of Rs. 10,000.00 and in default of payment of fine to undergo R.I. for six months. 2. Md. Alim Akhtar, S.I., the then, officer-in-charge, Bihariganj RS. is the informant of the case. The prosecution case is that the informant, comprising patrolling party of S.N. Singh, A.S.I., (RW. 3), constables Laldeo Singh, Rajendra Rai and Sunjay Kumar Singh (respectively RWs. 4, 5 and 6) and Ram Prakash Singh and Jamshed Alam, constables (not examined) was proceeding for conducting a raid on criminals and that when the patrolling party reached in village Permanandpur at about 8 P.M. on 11.7.2005, the appellant was seen coming out from bamboo grove. Seeing the police party he started fleeing away but he was chased and apprehended by the police party and a gunny bag was recovered from his possession and on opening the gunny bag Ganja weighing one and half kg. was recovered from it. A seizure list in presence of the public witnesses Ram Bilash Yadav (P.W.1) and Shankar Kumar (RW. 2) was prepared and the witnesses signed on the seizure list and a copy of the seizure list was also furnished to the appellant. On completion of investigation charge-sheet was submitted and the appellant was put on trial and he has been convicted and sentenced by the trial court as above. 3. As many as seven witnesses have been examined by the prosecution. The Investigating Officer of this case was not examined. P.Ws. 1 Ram Bilash Yadav and Shankar Kumar are the public witnesses, in whose presence the recovery and seizure of the Ganja is said to have been made but these two witnesses have turned hostile to prosecution. The RW. 7 Md. Alim Akhtar, the officer-in-charge of concerned RS. is the informant. The RW. 3 Surendra Nath Singh. RW. 4 Laldeo Singh. RW. 5 Rajendra Rai and RW. 6 Sunjay Singh are the constables who were said to be members of the raiding party and that out of these witnesses, the P.W. 5 has turned hostile to prosecution. 4. RW. 7 Md. Alim Akhtar, the officer-in-charge of concerned RS. is the informant. The RW. 3 Surendra Nath Singh. RW. 4 Laldeo Singh. RW. 5 Rajendra Rai and RW. 6 Sunjay Singh are the constables who were said to be members of the raiding party and that out of these witnesses, the P.W. 5 has turned hostile to prosecution. 4. RW. 1, deposed in his examination-in-chief that any Ganja was not recovered nor the appellant was apprehended in his presence and he identified his signature (Ext. 1) on the seizure list. But he stated in his cross-examination that his signature was obtained at the RS. and that he had not read the seizure list before signing the same. RW. 2 also deposed that he was taking tea to the P.S. and that while he came to P.S. Darogaji had obtained his signature (Ext. 1/1) on the seizure list. In his cross-examination, he deposed that nobody had been arrested in his presence and that he had signed on the seizure list without reading the same on being asked by the Darogaji. These two hostile witnesses have been cross-examined by the A.P.P. and their attention have been drawn towards their previous police statement that the appellant was apprehended in their presence and that recovery of Ganja was also made in their presence but both these witnesses denied to have made any such police statement supporting the case of prosecution. It has to be mentioned here that the I.O. of the case was not examined by the prosecution to prove the police statement towards which the attention of these two witnesses were drawn by the prosecution. Therefore, there is nothing on record to presume that these two witnesses had given any police statement supporting of the case of prosecution. Thus, the evidence of these two witnesses remain intact and these two witnesses have deposed before the trial court stating that the appellant was not apprehended nor recovery was made in their presence. No doubt, these two witnesses have signed on the seizure list but they have stated that Darogaji had obtained their signature at the RS. 5. RW. Thus, the evidence of these two witnesses remain intact and these two witnesses have deposed before the trial court stating that the appellant was not apprehended nor recovery was made in their presence. No doubt, these two witnesses have signed on the seizure list but they have stated that Darogaji had obtained their signature at the RS. 5. RW. 3, deposed that he, alongwith the members of the police party had gone to the village Parmanandpur and the appellant was apprehended there and that on search the appellant was found carrying a gunny bag and Ganja had been recovered from the gunny bag and seizure list had been prepared there. Thus, according to this witness the seizure list was prepared at the place of recovery. 6. RW. 4, who was also a member of the raiding party deposed that the appellant was apprehended with a gunny bag containing one and half kg. Ganja and that after recovery of Ganja a seizure list had been prepared at the spot. But in cross-examination he states that the raiding party was on 5-6 jeeps and that the appellant had been apprehended by other members of the party who were on a jeep just ahead of their jeeps and that when he reached at the spot, the appellant had already been apprehended there. He further deposed that the Ganja had not been weighed in his presence and that the appellant alongwith gunny bag had been brought to the RS. but any sample of the Ganja had not been taken. 7. RW. 5, a constable is named in the F.I.R. as a member of the raiding party but this witness has turned hostile and he admitted in his evidence that he was a member of the raiding party and deposed that he had not seen the appellant at the spot and that he had seen the appellant when he had came to the RS. This witness was cross-examined by the prosecution and his attention was drawn towards his previous police statement supporting the case of the prosecution. But the I.O. of the case has not been examined to prove any police statement, therefore, the cross-examination by the A.P.P. is useless, inasmuch as any police statement has not been proved on record. This witness was cross-examined by the prosecution and his attention was drawn towards his previous police statement supporting the case of the prosecution. But the I.O. of the case has not been examined to prove any police statement, therefore, the cross-examination by the A.P.P. is useless, inasmuch as any police statement has not been proved on record. Thus, this witness who was a member of the raiding party does not say to have seen the appellant apprehended at the spot and he says that he had seen the appellant only when he had came to the RS. 8. RW. 6, a constable who was also member of the raiding party deposed that after chase, the appellant was apprehended with a gunny bag and that the appellant alongwith gunny bag was brought to the RS. where the bag was opened and the Ganja was recovered from the bag. In cross-examination he deposed that the appellant was not searched at the place of recovery and that he (appellant) alongwith the recovered bag had been brought to the RS. where the bag was opened and the recovery was made. 9. RW. 7, S.I. who was the oificer-in-charge of the concerned RS. deposed that in the night at 8 P.M. while the police party reached the village Parmanandpur, the appellant was seen fleeing away with a gunny bag but he was chased and apprehended with the gunny bag and that on opening the bag one and half kg. Ganja was recovered. He further deposed that he seized the Ganja at that place and healso prepared a seizure list. The seizure list which was in the writing of this witness was marked as (Ext. 2). Thus, according to this witness, the seizure was made at the spot and the seizure list was also prepared there. In the seizure list the exact weight of the Ganja has been mentioned as one and half kg. In paragraph no. 2 of the cross-examination, this witness stated that the Ganja was not weighted at the place of seizure because any weighing instrument was not available there hence he had brought the Ganja to the P.S. and had weighted it there. Thus, this witness is contradicted on the point of the preparation of seizure list at the place of occurrence. When the measurement was made at the RS. Thus, this witness is contradicted on the point of the preparation of seizure list at the place of occurrence. When the measurement was made at the RS. how the exact weight could have been mentioned in the seizure list which is said to have been prepared at the place of recovery. The RW. 6 had also deposed that the seized bag was brought to the RS. and it was opened there and the Ganja was recovered there. Thus it is highly doubtful that the seizure list was prepared at the place of recovery as claimed by prosecution. 10. RW. 7, deposed at paragraph no. 3 of his cross-examination that he had kept the seized Ganja in Malkhana and he had also mentioned it in Malkhana register and that he had not taken any sample of the Ganja. This witness subsequently resiled from his statement and he further stated in paragraph no. 4 of his cross-examination that he had not kept the Ganja h Malkhana but he had given it to the Investigating Officer. Thus, this witness who had seized the Ganja does not say about keeping the Ganja in his custody and deposed that he had given it to the investigating officer. The investigating officer of the case has not been examined by the prosecution. The seized Ganja has also not been produced before the trial court nor there is any evidence about the custody of the seized Ganja. The produc tion of the seized Ganja before the court would had been best evidence but it has not been done. Mere oral evidence of witnesses is not sufficient to discharge the heavy burden of prosecution where the offence is punishable with stringent sentence under the N.D.P.S. Act. 11. The learned counsel for the appellant drew the attention towards the provisions under Sec. 55 of the N.D.P.S. Act which provides that the officer-in-charge of police station shall take charge and keep in safe custody pending the orders of the Magistrate all articles seized under the Act. Thus it is mandatory under law that the concerned officer-in-charge of the P.S. shall take the seized material in his custody for its safe keeping till further orders of the Magistrate with regard to the same. In this case, the P.W. 7 who was the officer-in-charge of the concerned P.S. has claimed to have seized the Ganja himself. Thus it is mandatory under law that the concerned officer-in-charge of the P.S. shall take the seized material in his custody for its safe keeping till further orders of the Magistrate with regard to the same. In this case, the P.W. 7 who was the officer-in-charge of the concerned P.S. has claimed to have seized the Ganja himself. He was duty bound under Sec. 55 of the Act to keep the seized Ganja in his custody till any further orders of the. Magistrate in this regard. But P.W. 7 says that he did not keep the seized Ganja in his safe custody and that he had given the same to the I.O. of the case. The I.O. of the case has not been examined. Thus, there is no evidence to show as to what happened to the Ganja which " is said to have been recovered from the appellant. The Ganja has also not been produced before the court. In such view of the matters, the prosecution case with regard to the recovery and seizure of the Ganja becomes highly doubtful and the appellant is entitled to benefit of doubt. The appellant is entitled to benefit of doubt. Therefore, I hold that the prosecution has not been able to prove the recovery and seizure of Ganja beyond the shadow of reasonable doubt. The appellant is entitled to benefit of doubt. Therefore, the appellant, who is in custody is acquitted of the charge and is ordered to be released forth with. The appeal is accordingly allowed.