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2006 DIGILAW 200 (PAT)

Md. Moquim v. State Of Bihar

2006-02-27

INDU PRABHA SINGH

body2006
Judgment I.P.Singh, J. 1. All the appellants have been convicted under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) and sentenced to undergo rigorous imprisonment for 7 years each with a fine of Rs.50,000/- each. 2. The brief facts of the case as per the case instituted on the basis of the Fardbeyan of one Pramod Kant, Officer Incharge of the Industrial police station are that on the day of occurrence i.e. on 18.12.1996 the house of the appellants was to be raided in course of investigation in Case No. 281 of 1996 under section 392 of the Indian Penal Code. Besides the informant raiding party with other officers including Satrughan Choudhary, S.I., Sadar Anchal, T.N. Biswan, Officer Incharge of Sabour police station, R.R. Dayasi, Officer Incharge . of Tilkamanjhi police station, Karambir Singh A.S.I., Chitranjan Mishra, A.S.I. and Sudama Singh A.S.I. Deputy Superintendent of Police was constituted. They searched the joint house of the appellants at about 1. P.M. in presence of independent witnesses, namely, Md. Ayub and Gulam Sarwar. During the search they recovered 3 kg. of Ganja which was kept in tin box from that joint house. The appellant Md. Saina was present but he could not produce any paper regarding the article. A seizure list was prepared in presence of abovementioned independent witness on which besides two witnesses appellant no. 3 Md. Saina also signed. The informant was of the opinion that both the three appellants were engaged in illegal contraband business and they also kept the stolen property as during the raid a T.V. set, a deck and a sound box was also recovered. On the basis of the aforesaid Fardbeyan a formal F.I.R. was lodged. After investigation the charge-sheet under section 20(b) (i) of the Act and 414 of the Indian Penal Code was submitted and finally the trial concluded with the result as indicated above. 3. The appellants pleaded not guilty and had stated that they were innocent and have been falsely implicated in this case by the police. 4. The prosecution has examined altogether 6 witnesses in order to prove its case. P.W. 1, Md. Ayub and P.W. 2 Md. Gulam Sarwar are seizure list witnesses. They have not supported the prosecution case and have been declared hostile P.W. 3 is Deputy Superintendent of Police who. was leading the raiding party. 4. The prosecution has examined altogether 6 witnesses in order to prove its case. P.W. 1, Md. Ayub and P.W. 2 Md. Gulam Sarwar are seizure list witnesses. They have not supported the prosecution case and have been declared hostile P.W. 3 is Deputy Superintendent of Police who. was leading the raiding party. P.W, 4, is Chandrika Prasad, P.W. 6, Pramod Kant is the informant P.W. 5, Sudama Singh is the I.O. of this case and also accompanying the raiding party. P.W. 5, Karanbir Singh is an eye witness. 5. Defence has also examined three witnesses. D.W. 1 has been examined to prove that the appellants are living in his fathers house. He has also stated that the articles recovered belonged to Bhusi Mian father of the appellants. D.W. 2, Md. Rijwal Hussain the neighbour of the appellants has stated that Ganja was not recovered. P.W. 3 Nisar Ahmad has supported the defence of the appellants that the house belonged to Bhusi Mian and Ganja was not recovered from the possession of the appellants. 6. All the prosecution witnesses except P.Ws. 1 and 2 have supported the case as narrated by the informant in his Fardbeyan. According to P.W. 4 (informant) the said house of Saina and other two appellant was searched in presence of two independent witnesses P.Ws. 1 and 2 and 3 kg. of Ganja was recovered alongwith a IV. set, a deck and a sound box The appellant Saina could not produce any papers or gave satisfactory reply about the possession of the articles so recovered. According to him he prepared the seizure list (Ext. 2) and took signature of the the case for investigation to A.S.I. sudama Singh (P.W. 5). 7. P.W. 5 has also supported the case and has stated that he alongwith P.W. 3, P.W. 6 and other officials like T.N. Bishwas, R.R. Dayal, Satrughan Choudhary and Chandrika Prasad have raided the alleged house in presence of two independent witnesses and during the raid they seized Ganja and other electronic articles. He has further stated that the seized Ganja was kept in the safe custody of Malkhana and samples were properly prepared which were sent for Foresic Science Laboratory but the report has not been received till date. None of the articles so seized were produced in the court though they were in Malkhana. He has further stated that the seized Ganja was kept in the safe custody of Malkhana and samples were properly prepared which were sent for Foresic Science Laboratory but the report has not been received till date. None of the articles so seized were produced in the court though they were in Malkhana. P.W. 3 has also supported the case as narrated by the informant. However, he has stated that the house was raided in connection with another case of robbery of motorcycle. 8. P.W. 6 another eye-witness has also supported the case. P.Ws. 1 and 2 though declared hostile but they admitted their signature on the seizure list. P.W. 1 has stated that the police obtained his signature on plain paper. P.W. 6 has also supported the case as narrated by the informant and has stated that on the day of occurrence during the raid of the house of the appellant 3 Kg. Ganja was recovered. 9. Learned counsel for the appellants has submitted that the allegation of prosecution that the appellants are engaged in illegal trade of Narcotic drugs has not been proved beyond all reasonable doubt since 3 Kg. of Ganja is too small for carrying illegal business of Ganja. He has further submitted the alleged recovery of Ganja from the house of Bhusi Mian father of the appellants cannot be said to be the house of the appellants as pec the Muslim Law. As such anything recovered from the house of Bhusi Mian cannot be said to be in possession of these three appellants. As such the prosecution could not also prove that the Ganja was recovered from the conscious possession of these appellants. It has also been submitted that when the seizure list contained the signature of appellant no. 3, as such appellant nos. 1 and 2 cannot be held responsible for such seizure and as such Ext. 2 cannot be used against appellant nos. 1 and 2 as per Section 100(7) of the Code of Criminal Procedure. The sample packets has not been made in presence of appellants neither it had signature of appellant which is violative of Section 55 of the Act. Further more the whole quantity of seized Ganja was also not sealed at that time of raid. Thus possibility of sending samples from other lot could not be denied. D.Ws. The sample packets has not been made in presence of appellants neither it had signature of appellant which is violative of Section 55 of the Act. Further more the whole quantity of seized Ganja was also not sealed at that time of raid. Thus possibility of sending samples from other lot could not be denied. D.Ws. who were neighbour of Bhusi Mian living nearby have also denied any recovery of Ganja by the raiding party. Further more it was submitted that no report of Forensic Science Laboratory was received till the date of deposition and the report could not be exhibited, as such it could not be proved that the material so seized was actually contraband substance. On the point that whether Ganja was seized from the conscious possession of all these appellants, learned counsel has drawn my attention-towards a decision of the Apex Court reported in 2001(1) P.LJ.R. 85 S.C. (Md. Ali Naven V/s. State of M.P.) in which it has been held that no evidence or any suggestion made by the prosecution about the appellant being in joint possession of the seized article alongwith co-accused the seizure memo specifically pointing only towards co-accused in absence of direct or specific evidence against other appellants and other appellants are entitled for acquittal. 9A. About the conscious possession learned counsel has cited number of decisions including one reported in 2000(4) P.L.J.R. 124 S.C. (Ahmed V/s. State of Gujrat) in which it has been held that to convict an accused under section 20(b)(i) of the Act for doing business of contraband it is on the prosecution to prove the conscious possession of the articles by the offenders. In the present case the house belonged to Bhusi Mian and the prosecution has as such badly failed to prove that Ganja was actually possessed by the ap-Lastiy it was vehemently pleaded that the prosecution failed to adhere by the provision of Section 55 of the Act and by not keeping the seized article under sealed cover and not taking sample in presence of the witnesses creates doubt that whether the sample sent for examination was from the same lot of Ganja which was recovered from the house. That apart by not producing the test analysis report of contraband and making exhibit it has badly failed to prove that actually it was Ganja recovered from the house and from possession of the appellants. 10. That apart by not producing the test analysis report of contraband and making exhibit it has badly failed to prove that actually it was Ganja recovered from the house and from possession of the appellants. 10. For considering the submissions of the learned counsel the deposition of the witnesses has to be scrutinised in detail. From the deposition of witnesses there is no doubt that the articles were recovered as stated. It is also not disputed that the house belonged to Bhusi Mian as has been stated by P.W. himself and Ganja was recovered from a tin box kept inside the bed from the southern room. P.W. 3 has also submitted that Ganja was not sealed in his presence. P.W. 4 the informant has also stated that it was a common house of appellants belonging to his father. He has also stated that he did not put seal on the Ganja neither he put signature on the packet seized from there. He has also stated that he had not seen that type of Ganja earlier. The informant has also not said anything about sealing of whole lot of Ganja rather he has stated that it was kept in the Malkhana. He has also stated that he sent the sample for test in Forensic Science Laboratory but could not received the report. He has also stated that he could not take the statement of Bhusi Mian father of the appellants. He has further stated that Ganja was in the charge of the Malkhana. According to him samples were sent for chemical analyst. He has specifically stated that he did not seal the Ganja neither took the signature of witness on the sample packets. He has also stated that the contraband was not weiahed. Another eye-witness member of the raiding party P.W. 6 has stated that it was not sealed at the place where it was seized. Even no signature done by the head of the raiding party (P.W. 3) on the seizure list neither it was sealed in his presence. 11. From the deposition of the witnesses it is clear that Ganja was not seized in huge quantity but even 3 Kg. of Ganja neither can be said to be in small quantity as permitted by the law. 11. From the deposition of the witnesses it is clear that Ganja was not seized in huge quantity but even 3 Kg. of Ganja neither can be said to be in small quantity as permitted by the law. However, in this case the provision of Section 55 of the Act has not been strictly followed and there has been many lacuna in handling of the case. The sample has not been properly made and whole lot of Ganja was not sealed. Even the chemical analysis report could not be produced in the Court. These all goes in favour of the appellants. It is true that the punishment under this Act is very severe, therefore, all the provisions of the Act be strictly followed to conclude that actually the material so recovered has been sent for chemical analysis and that the material so seized was actually a contraband substance or not should be fully ascertained. There should not be any chance of the false implication of a innocent person in such cases. In this case police not being an expert to be expected to recognise Ganja. The informant has specifically stated that the article which he seized was not the article usually he used to see as Ganja. It was something different looking. That apart no report was produced in the court or exhibited which is a lacuna on the part of the investigation. Not only that submission of the learned counsel that even if the Ganja was recovered the seizure list has only been signed by appellant no. 3 and as such it could not be used against the other two appellants and the recovery is not binding on the other two appellants. They thus on this count deserves acquittal from the case so cited. 11A. Since the house was a joint house used by all the appellants the submission of the learned counsel about the conscious possession of the contraband also could not be ignored. In that circumstances the prosecution could not prove who actually was the owner of the Ganja alleged to have recovered. The owner of house Bhusi Mian was not made an accused. Having all these lacuna, it is clear that prosecution could not prove even conscious possession of the appellants of article so recovered. Neither it could be proved beyond doubt that it was contraband since chemical report was not made exhibit. 12. The owner of house Bhusi Mian was not made an accused. Having all these lacuna, it is clear that prosecution could not prove even conscious possession of the appellants of article so recovered. Neither it could be proved beyond doubt that it was contraband since chemical report was not made exhibit. 12. In view of above, I am of the opinion that these appellants deserve acquittal giving them benefit of doubt. Acordingly, the appellants are acquitted of the charges levelled against them. The conviction and sentence passed by the court below is set aside. 13. In the result, this appeal is allowed. The appellants are in custody, they are directed to be released forthwith, if not wanted in any other case.