Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 63 (PAT)

Ashok Jha v. Union Of India

2006-01-18

INDU PRABHA SINGH

body2006
Judgment I.P.Singh, J. 1. The sole appellant has been convicted under Section 20(b) (II) of the Narcotic Drugs and Psychotropic Substance Act, 1985 and was sentenced to undergo R.I. for 10 years with a fine of Rs. one lakh, in default to undergo R.I. for one year. 2. The prosecution case, in short, is that a complaint case was filed by the Union of India, through Inspector, Custom(P) Division Motihari stating, inter alia, he received confidential information that a truck bearing registration No. UP 78B-4653 is loaded with Vansapti and is likely to cross Bihar State Excise Check Post with charas on 16.6.2001. 3. The Assistant Commissioner, Custom formed a preventive party of custom staff under leadership of Dr. Amardeep Singh, A.C. The aforesaid preventive party was deputed to N.H. 28, to inspect the said truck which arrived at Bihar State Excise Check Post at about 11 p.m. on 16.6.2001. The said truck was stopped and brought to Custom(P) office at Motihari. It is alleged that on checking of the aforesaid truck in presence of the independent witnesses as well the driver of the said truck, 20 kgs. of charas worth Rs. six lakh (6,00,000/-) was recovered from the wheat bags. The above-mentioned charas was concealed in 40 bags. The total weight of charas was 20 kgs. The said truck was also loaded with Vanaspati Ghee of 800 tins. After recovery of charas, seizure list Ext. 1 and Panchnama Ext. 2, were prepared by PW 1 which was signed by Pappu Pal and Ashok Kumar. It has been further submitted that voluntary statement of appellant, Ashok Jha was recorded in presence of Inspector J.P. Das under Section 67 of the NDPS Act, 1985 (in short the Act). In the voluntary statement of the appellant, he has confessed that charas was recovered from wheat bags which were loaded on his truck. This voluntary statement has been marked as Ext. 3 which is in the writing of the appellant himself. Thereafter, interrogatory statement of the accused was also recorded in presence of PW 2 in terms of Section 67 of the Act. The said interrogatory statements is in the hand writing of appellant himself and has been marked as Ext. 5. It has been also alleged that the aforesaid article (charas) recovered from the wheat bags was sealed and sent for chemical examination. The said interrogatory statements is in the hand writing of appellant himself and has been marked as Ext. 5. It has been also alleged that the aforesaid article (charas) recovered from the wheat bags was sealed and sent for chemical examination. It has been also stated that from perusal of report of chemical examiner dated 11.7.2001, it transpires that after chemical examination the aforesaid article was found to be charas. The report of chemical examiner Custom House, Calcutta, dated 11.7.2001 has been marked as Ext. 8 under Section 294 of the Code of Criminal Procedure without any objection from defence side. 4. After perusal of the material on record, the learned Sub- Judge took cognizance under Section 23, NDPS on 27.7.2001. The charge under Sections 23 and 20(b)(II) of the Act was explained to the accused on 29.8.2001 by Additional Sessions Judge, Motihari to which he pleaded not guilty and thus the accused was put on trial. 5. Prosecution in support of this case examined altogether 8 witnesses. 6. PW 1 is Jay Prakash Das. He is Inspector in Motihari custom Division. He has supported the case as stated in his complaint case. 7. PW 2 is R.K. Shukla. He has stated that on 17.6.2001, interrogatory statement of accused Ashok Jha was recorded in his presence in the hand writing of appellant himself. This interrogatory statement has been recorded by PW 2 which has been marked as Ext. 5. 8. "PW 3 is Bashistha Pandey, who was driver of Government vehicle on the day of occurrence. He has stated that on 16.6.2001 at about 8.30 p.m. he had brought Dr. Amardeep Singh, R.K. Shukla PW 2, Jay Prakash Das PW 1 constable Rajendra Sah. Sahdeo Baitha PW 3 and Mukteshwar Singh, to Government Check-post by Government Vehicle. 9. PW 4 is constable Sahdeo Baitha. He has deposed that on 16.6.2001 he was the member of the raiding party along with other Government Officials. He has also identified the appellant in the Court. 10. PW 5 is Rajendra Sah. According to him, he was the member of raiding party on 16.6.2001. The appellant was apprehended on that day. He has deposed that charas was not recovered in his presence but truck was seized at Bariarpur Check Post. 11. PW 6 is Lakhi Narayan Das, who is Godown Incharge. He has stated that charas recovered from appellant has been burnt. According to him, he was the member of raiding party on 16.6.2001. The appellant was apprehended on that day. He has deposed that charas was not recovered in his presence but truck was seized at Bariarpur Check Post. 11. PW 6 is Lakhi Narayan Das, who is Godown Incharge. He has stated that charas recovered from appellant has been burnt. It is mentioned in serial No. 8 of the destruction list. This destruction list (report) has been brought on the record by him and has been marked as Ext. 6. He has further stated that the charas was not destroyed in his presence and he had no personal knowledge of this case. This witness is a formal witness. 12. PW 7 is Ashok Kumar. He has stated that 17.6.2001 seizure list and panchnama were prepared in his presence. He has given his signature on the aforesaid document on the record which has been marked as Ext. 7. He has stated that charas or ganja was not recovered in his presence. 13. PW 8 is constable Mukteshwar Singh. He has deposed that on 16.6.2001, he was posted in Motihari and was one of the members of raiding party. The appellant was caught on that day and seizure list was prepared in his presence. 14. Learned counsel for the appellant has submitted that actually charas has not been recovered from the conscious possession of appellants, as per prosecution story the same was recovered from wheat bags kept on truck. It has also been submitted that there is no link between seizure, making of samples, it proper sealing and sending the same for chemical examination. 15. It has been submitted that in this case from the report of chemical examination, it does not appear that it relates to the same sample of alleged charas which was sent for chemical examination and which was actually taken from the charas so seized as alleged. According to learned counsel there is violation of Section 52-A of the Act. To elaborate his points he has also pointed out that PW 1 in his deposition, para 6, has stated that he had made 3 samples each was having 25 grams of charas, whereas from Ext. 8 it appears that the test was done on 51 grams of charas. To elaborate his points he has also pointed out that PW 1 in his deposition, para 6, has stated that he had made 3 samples each was having 25 grams of charas, whereas from Ext. 8 it appears that the test was done on 51 grams of charas. It also casts doubt whether the report is appertaining to same charas which was sent in three sample-packets for the examiner, because charas sent for test to the examiner was altogether 75 grams and not 51 grams, as mentioned in the report. It has been further submitted that prosecution failed to prove that the recovery was made from conscious possession of appellant as he (appellant) got the truck stopped without hesitation and also got the wheat bags opened from which 20 kgs. charas was recovered. It was stated that the bags were loaded on the truck by someone else to hand it over to his son at Kanpur but custom people did not care to investigate this fact and lodged case against only this petitioner leaving even driver and Khalasi who were also present at the time of recovery which shows half-hearted investigation on part of custom officials. 16. Going through the deposition and records of the case, it appears that on the secret information that narcotics were being smuggled from Nepal, a raiding party was on look out on highway and they stopped and truck bearing No. UP 78B-4653 and truck was loaded with vegetable oil. For its detail search the vehicle was taken to Custom Office Motihari, whereon after search charas was recovered. As such the another submission of learned counsel that on check post only charas was seized and no articles were seized has no relevance for his defence. Seizure list discloses that about 800 tins of vegetable oil also as such the submission that vegetable oil was not seized is also not correct. Another submissions that the petitioner was released on 16.6.2001 and case was lodged on 17.6.2001 and therefrom he was apprehended is not a lacuna in this case as the truck reached Bariar check post on late hour of 16.6.2001 at about 11.00 in the night and thereafter it was taken to the office and after search in the office charas was recovered. As such, recovery made on 17.6.2001 does not casts doubt on the conduct of officials and recovery of articles. 17. As such, recovery made on 17.6.2001 does not casts doubt on the conduct of officials and recovery of articles. 17. In this case as fur as submissions of learned counsel that all the witnesses are members of raiding party does not affect adversely the case of prosecution since in the facts and circumstances of the case, it is hardly possible to have independent witnesses at that hour of night. No independent witness would agree to accompany the truck from the place of its interception at Bairia Check post to the local head office of the Custom where detail search was made at that hour. The objection of learned counsel that the search would have been made at the place of interception also does not seem to be very logical and reasonable lacuna. On road search after removing 800 containers would not have been practical. The learned counsel has drawn my attention that there should be least doubt in such cases and there should be transparency in each and every act and conduct of investigating agency should be transparent because punishment in such cases of Narcotic Act is very harsh and deterrent. In this regard, his submission about recovery of article not from conscious possession of the petitioner was emphasised by drawing my attention that it was kept in bags of wheat about which he says that it was handed over by one of his friend at Birganj to deliver the same to his son at Kanpur. But the investigating agency did not choose to investigate this point. On this point. he has also drawn my attention on a decision of Apex Court reported in AIR 2002 SC 3343 in which it has been held that the prosecution must prove that the Narcotic substance was recovered from conscious possession of the petitioner. It has also been submitted that if petitioner would have known that narcotics were kept in bags he would have tried to speed up the truck and would not have so easily stopped the vehicle and also would not have so willingly opened the bags. However, this submission is on presumption and may not be accepted in toto. The other submission about sampling of narcotic, preparation of its packet, proper sealing of packets with independent witnesses and presence of Magistrate while making such sample and finally sending it for chemical examination is also a vital point in such case. However, this submission is on presumption and may not be accepted in toto. The other submission about sampling of narcotic, preparation of its packet, proper sealing of packets with independent witnesses and presence of Magistrate while making such sample and finally sending it for chemical examination is also a vital point in such case. He had relied on number of decisions of Apex Court in which it was held that there should be a link between seizure of narcotics, its sampling and proper sealing and sending of sample to the chemical examiner and report of chemical analysist to prove that the report which has been produced by the analysist and produced in Court is appertaining to same article which has been actually sent to the chemical analysist duly sealed so that no chances of adulteration could be suspected. It is solemn duty of the investigating agency to establish this link without all doubt. In this ease, three packets of 25 grams of seized article each were sent to the chemical analysist but the report of analysist shows that article received which was charas weighed only 51 grams instead of 75 grams. It itself is a great lacuna in the case of prosecution and casts doubt about the genuineity of the sample articles. On this count only petitioner deserve acquittal on benefit of doubt. That apart the article so seized could not be made an exhibit, since it was claimed that it had already been destroyed. But prosecution witness on this point has stated that it was not destroyed in his presence. 18. Considering the facts and circumstances, I am of the opinion that prosecution has not proved its case beyond all reasonable doubt and appellant deserves benefit of doubt. Accordingly, he is acquitted on giving him benefit of doubt. 19. It has been stated that the appellant is in jail. He will be released from jail forthwith if not wanted in other case. In the result, this application is allowed.