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2006 DIGILAW 1299 (PAT)

Kapildeo Sah v. State Of Bihar

2006-12-22

DHARNIDHAR JHA, SHIVA KIRTI SINGH

body2006
Judgment Shiva Kirti Singh, J. 1. This appeal by the two appellants Kapildeo Sah and Praveer Saha @ Praveer Sah has been preferred against the judgment and order dated 30th November, 2005 passed by Addl. Sessions Judge-Cum-Special Judge for cases under the N.D.P.S. Act, Kishanganj in Special Case No. 19 of 2001. 2. Both the appellants have been convicted for offences punishable under sections 20(b)(ii)(c) of the N.D.RS. Act and sentenced to Rigorous Imprisonment for 14 years and also to pay a fine of Rs. 1,00,000.00 each and in default of payment to undergo Rigorous imprisonment for a further period of one year. 3. According to the petition of complaint by complainant, A.K. Das (P.W. 6) who at the relevant time was Inspector of Customs (Preventive) at Kishanganj, a truck bearing Registration No. WB-41/7155 was checked on suspicion in the morning at about 4 A.M. on 12.10.2001 near Dumra on the National Highway at Kishanganj. It is specific case of the complainant in the petition of complaint (Exhibit-6) that in course of checking of the truck nothing was found from the body of the truck although it was covered from Tripal but while checking from the Hood of the truck some smell of Ganja came and therefore, the preventive team members wanted to check the hood of the truck thoroughly. For that the truck was allegedly brought to office of Kishanganj Customs alongwith appellant no.1, the driver and appellant no. 2, the cleaner of the truck. This act of bringing the truck to Customs Office was found essential considering the safety aspect and also that nobody was found to become witness in the search operation. 4. As per materials on record a search was conducted in the Customs Office at 11 A.M. and two witnesses were called P.Ws. 1 and 2 who signed on the seizure-list (Exhibit-4). The seizure-list shows seizure of 212 kilograms of Ganja valued at Rs. 4,24,000.00 and a Tata truck bearing the aforesaid registration number valued at Rs. 5,00,000/-. The seizure-list is in English language on which appellant no.1 signed in Hindi and appellant no. 2 appears to have signed in Bengali. 5. On the said allegation the appellants and two others were named as accused in the complaint petition in which it was asserted that appellants have disclosed the name of the other two co-accused in their voluntary statements and interrogatory statements. 2 appears to have signed in Bengali. 5. On the said allegation the appellants and two others were named as accused in the complaint petition in which it was asserted that appellants have disclosed the name of the other two co-accused in their voluntary statements and interrogatory statements. The voluntary statements which have also been at places referred as confessional statements have been marked as Exhibits 2 and 2/1 and the interrogatory statements have been marked as Exhibits 3 and 3/1. 6. The other two accused could not be apprehended and therefore they were declared absconder and their trial was separated. Two appellants were put on trial and they pleaded not guilty to the charge framed against them. 7. In order to prove its case the prosecution has examined altogether 7 witnesses. RW. 1, Shankar Rai is a tea vendor by profession. RW. 2, Sita Ram is a Rickshaw puller by profession. Both are claimed to be witnesses of seizure. They have denied that any seizure was made in their presence and they have been declared hostile. RW. 3, Madan Poddar is an Advocate by profession who at the relevant time was a typist at Kishanganj. He has deposed that Exhibits 2 and 2/1 as well as Exhibits 3 and 3/1 are in his handwriting and has proved those exhibits. He has fairly stated that he cannot identify the accused persons. In cross-examination he has deposed that he had prepared exhibits 2 and 2/1 as well as exhibits 3 and 3/1 on the basis of some written papers by copying the contents by hand. He claims to have written those documents on the order of Superintendent (P.W. 7). He has deposed that none of the two accused who are in dock were before him nor he saw the Superintendent interrogating them nor those accused made any confessional statement in his presence. 8. P.W. 4, Awadhesh Sharma and P.W. 5, Shyam Bihari Singh claimed to be Havildar and constable of Customs and Excise Department and in that capacity they claimed that they were members of the Preventive Team which seized a truck on N.H. 31 in Dumaria Mohalla on 12.10.2001. They do not claim to be present at the time of search of the truck and do not claim that anything was recovered in their presence. They do not claim to be present at the time of search of the truck and do not claim that anything was recovered in their presence. In fact they do not support the case in the complaint petition that the body of the truck was searched initially on the National Highway in which nothing was found and on account of smell of Ganja from the hood of the truck the truck was brought to Customs Office. Not a trace of this kind of happening is to be found in their deposition. P.W. 6, Ashok Kumar Das was head of the preventive team. He claims to have apprehended the truck in question on the National High-Way 31 near Dumaria and has said that appellant no. 1, Kapildeo Safr was driver of the truck and appellant no. 2, Praveer Saha @ Praveer Sah was cleaner. He has not claimed that any checking of the truck was made on the Highway and on account of any smell of Ganja the truck was brought to the Customs Office. He has simply deposed in paragraph-2 of his examination-in-chief that the said truck was checked in the Customs Office and 212 Kilograms of Ganja was recovered for which he prepared the seizure-list on which he has signed and he also obtained signature of P.Ws. 1 and 2 whom he claimed to be independent witnesses. He also stated that both the appellants have signed on the seizure-list (Exhibit-4). He also claimed to have prepared a Panchnama (Exhibit-5) on which he obtained signatures of both the appellants. He has claimed to have obtained the confessional (voluntary) statement of the appellants and according to him P.W. 3, Madan Poddar acted as a scribe for writing the confessional statements. His signature was marked as Exhibits 1/4 and 1/5 respectively. According to this witness the appellants were interrogated by Superintendent of Customs Shri R.K. Mishra, P.W. 7. He proved the signature of Mr. Mishra on the Interrogatory statements of two appellants which have been marked as Exhibits 1/6 to 1/15. He has claimed that after all the procedure he sent the apprehended accused persons to judicial custody. 9. According to this witness the appellants were interrogated by Superintendent of Customs Shri R.K. Mishra, P.W. 7. He proved the signature of Mr. Mishra on the Interrogatory statements of two appellants which have been marked as Exhibits 1/6 to 1/15. He has claimed that after all the procedure he sent the apprehended accused persons to judicial custody. 9. It has come in the cross-examination of P.W. 6 that the place where the truck was apprehended is near the official residence of Sub-Divisional Magistrate and residence of Chief Judicial Magistrate as well as the local Bus Stand situated at a distance of 10 to 15 cubits. He has further admitted that he apprehended the vehicle only on suspicion at 4 A.M. in the morning whereas seizure was made at 11 A.M. He has identified the appellants but in paragraph-12 of his cross-examination he has stated that the driver and cleaner had disclosed to him that in their knowledge there was nothing in the vehicle and that they had begun their service on the said vehicle on the same date. Thereafter he has stated that the driver and Khalasi were not aware that there was contraband article in the vehicle. Then he has frankly stated that no article was found in the custody of driver and the cleaner. He has admitted that no photograph etc. were got done in proof of seizure. 10. P.W. 7, Shri Ratan Kumar Mishra was posted as Superintendent, Custom Preventive at Kishanganj at the relevant time. He has deposed that A.K. Das, Inspector (P.W. 6) was leading a preventive team which had apprehended the truck in question and from the vehicle contraband Ganja weighing 212 Kilograms was recovered and the driver as well as khalasi (cleaner) of the truck were also apprehended. He identified Kapildeo Sah and Praveer Sah as driver and cleaner respectively. He has claimed that he took the interrogatory statements of both the accused which ran into five pages each and he had signed on those pages. He claimed that those statements had already been exhibited as exhibits 3 and 3/1. 11. The only material elicited from this witness in cross-examination is that he was not in the preventive team and that because he was transferred to another place, he was not aware whether chemical report of the seized article had been received or not. 12. He claimed that those statements had already been exhibited as exhibits 3 and 3/1. 11. The only material elicited from this witness in cross-examination is that he was not in the preventive team and that because he was transferred to another place, he was not aware whether chemical report of the seized article had been received or not. 12. From a careful perusal of evidence of P.W. 6 and the documentary evidence contained in exhibit-4 showing seizure of the Ganja and truck and from the trend of cross-examination it appears that the appellants have not challenged their signatures on the seizure-list or the factum of seizure nor they objected to taking on record as exhibit-7, the chemi cal examination report from the Government Opium and Alka Loid Works, Gajipur (U.R) which shows that sample sent vide letter dated 16.10.2001 was received in duly sealed condition and on the basis of test the sample was found to be Ganja (cannabis) within the meaning of N.D.P.S. Act, 1985. It further appears from the trend of cross-examination and from the voluntary statements and interrogatory statements of the appellants as well as from the issues raised before the trial court that the appellants have taken a defence that the articles seized from the Hood of the truck was not in their conscious possession because they did not know that such article was kept concealed in the hood of the truck. 13. Prima facie, there does appear some irregularities in the preparation of the voluntary statements, exhibits 2 and 2/1 and the interrogatory statements exhibits 3 and 3/1 by P.W. 3, Madan Poddar who admits that at the relevant time he was a typist at Kishanganj, because those exhibits are handwritten by Madan Poddar instead of having been typed by him as typist. However, on careful scrutiny it becomes clear from his deposition in paragraphs that he prepared fair copy on the basis of written papers by hand because Type Machine was not available although he had been called for typing. 14. However, on careful scrutiny it becomes clear from his deposition in paragraphs that he prepared fair copy on the basis of written papers by hand because Type Machine was not available although he had been called for typing. 14. Learned counsel for the appellants first raided the issue of non-compliane with requirements of Sec. 50 of the N.D.P.S. Act on the basis of admitted fact that vehicle was not searched in presence of a Magistrate but he could not cite any judgment to counter the views of the trial court on this issue in paragraph-15 of the impugned judgment wherein reliance was placed by the prosecution upon judgment of the Apex Court. Before us learned counsel for the Union of India placed reliance upon judgment of the Apex Court in the case of State of H.P. vs. Pawan Kumar reported in (2005)4 SCC 350 . The said judgment clearly shows that Sec. 50 of the N.D.P.S. Act is not applicable in case of search of vehicle or baggage etc. and applies only to search of a person. 15. The other submission of learned counsel for the appellants is that the entire prosecution case in respect of search and seizure of truck and ganja should be disbelieved because the seized Ganja was not produced before the court as a material exhibit. For this he placed reliance upon a judgment of the Apex Court in the case of Jitendra vs. State of M.P. reported in (2004) SCC (Cri.) 2028. In that case search, seizure and investigation had been conducted by the police allegedly on secret information and the seized article alleged to be one kilogram of Charas was not produced as material exhibit. The Panch witnesses had turned hostile and through suggestion made by the defence to P.Ws. a defence had been taken that the land lady in collusion with the police had lodged a false case only for evicting the accused from the house. The Supreme Court held the defence to be worthy of notice and on facts it was held that prosecution case had not been proved beyond reasonable doubt and the accused were entitled to benefit of doubt. Thus, no proposition of law has been laid down in the said judgment that in all cases the seized materials in a case under the N.D.P.S. Act must be preserved as material exhibit otherwise the case will fail. Thus, no proposition of law has been laid down in the said judgment that in all cases the seized materials in a case under the N.D.P.S. Act must be preserved as material exhibit otherwise the case will fail. In fact Sec. 52-A of the Act contains provisions for preparation of inventory under a Judicial Magistrate and for destruction of seized materials. No challenge has been made through suggestions or otherwise that such procedure under sec. 52-A of the Act has not been followed in this case. On the contrary, learned counsel for the Union of India has produced certain official documents including a copy of order of Sessions Judge, Purnea dated 7.2.2002 in Cr. Misc. No. 19 of 2002 to show that in respect of the seized articles physical verification and certification was done in respect of 212 Kilograms of Ganja by a Judicial Magistrate, Araria, Shri OP. Singh on 8.2.2002. 16. Learned counsel for the Union of India has placed reliance upon judgment of the Apex Court in the case of M.M. Prabhu Lal vs. Assistant Director, Di-rectorate of Revenue Intelligence (2003)8 SCC 449 to submit that when vehicles were apprehended carrying large quantity of contraband and therefore the seizure was made not at the spot but at the Custom Office, in absence of allegation about meddling with the contraband, there was no illegality in the seizure. It was also submitted that in the aforesaid case prosecution had examined only police witnesses on the point of search, seizure and recovery but in view of confessional statements which were voluntary, recovery could not be doubted on the ground of non-examination of independent witnesses. 17. Applying the aforesaid principle in the present case it is found that there is no material to doubt the voluntary statements of the accused/appellants in which search, seizure and recovery stands admitted and therefore, the fact that the Panch witnesses, P.Ws. 1 and 2 turned hostile does not render the factum of search, seizure and recovery doubtful. 18. The only main issue is whether the accused/appellants can be held to be in conscious possession of the Ganja which was seized from the hood of the truck of which the appellants were driver and cleaner. On careful evaluations of facts and circumstances, the defence of the appellants that they were not aware that 212 Kilograms of Ganja (valued Rs. The only main issue is whether the accused/appellants can be held to be in conscious possession of the Ganja which was seized from the hood of the truck of which the appellants were driver and cleaner. On careful evaluations of facts and circumstances, the defence of the appellants that they were not aware that 212 Kilograms of Ganja (valued Rs. 4,24,000.00) was kept on the hood of the truck does not at all appear to be reasonable and acceptable. They were the only persons at the truck when it was apprehended alongwith the appellants and hood of the truck is not a place which will not be in the notice of the driver and cleaner of the truck so that anybody can keep such a huge quantity of Ganja without their notice. 19. In the facts and circumstances we have no hesitation to hold that the appellants were in conscious possession of the seized Ganja kept on the hood of the truck wherefrom it was seized. The chemical examination report has been admitted in evidence without any objection and hence the charge against the appellants under sections 20(b)(ii)(c) of the N.D.P.S. Act has rightly been found proved by the trial court. The judgment and order of conviction and sentence are found to be suffering from no illegality or infirmity. The appeal of the appellants is found to be without merit. It is, therefore, dismissed.