Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1069 (PAT)

Yogendra Singh v. Union Of India

2007-07-04

ANWAR AHMAD, CHANDRAMAULI KR.PRASAD

body2007
Judgment C.K.PRASAD and A.AHMAD JJ. 1. This appellant besides Beerendra Ansari and Nabi Rasool Dewan were put on trial for commission of offence under Sections 20 and 23 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as NDPS Act. 1st Additional Sessions Judge, Vaishali at Hajipur, by judgment dated 27th of October, 2005 and order dated 28.10.2005 passed in C-II (A)- 1/2003, held them guilty. Appellant was sentenced to undergo rigorous imprisonment for 12 years each under Sections 20 and 23 of the of NDPS Act and a fine of Rs. 1 lac each, and in default, to suffer rigorous imprisonment for two years each. However, two convicts, namely, Beerendra Ansari and Nabi Rasool Dewan were sentenced to undergo rigorous imprisonment for 15 years each on both the counts and also a fine of Rs. 1,50,000/- each and in default, to suffer rigorous imprisonment of three years each. 2. According to the complaint filed by Triloki Nath Prasad, Custom Inspector (P.W.5), on 1.3.2003 at about 13 hours, three persons, who disclosed their names as Yogendra Singh (appellant) and two other convicts, namely, Beerendra Ansari alias Suresh Ansari and Nabi Rasool Dewan were intercepted at Jadua (Hajipur) during drive against smuggling of foreign goods. They were searched in the presence of the Superintendent of Custom and two independent witnesses and from their possession, 14 packets of Charas tucked and tied on their bodies beneath their worn clothes were recovered. Thereafter, all of them brought to the Custom Office at Hajipur, where two packets of Charas were recovered from the possession of appellant Yogendra Singh and 6 packets each were recovered from the other two convicts in presence of the witnesses. According to the allegation, each packet contained 500 gms of Charas in moist condition total weighing 7 kgs. Four representative samples were taken from each of the packets and two of the samples were sent for chemical examination to Govt. Opium and Alkaloid Works, Ghazipur (U.P.) and Neemuch (M.P). According to the analyst samples contained Charas within the meaning of NDPS Act. The aforesaid complaint, led to the prosecution of the appellant and the aforesaid two convicts for offence under Sections 20 and 23 of the NDPS Act. After the charges were explained, the appellant and the two other convicts pleaded not guilty and claimed to be tried. 3. According to the analyst samples contained Charas within the meaning of NDPS Act. The aforesaid complaint, led to the prosecution of the appellant and the aforesaid two convicts for offence under Sections 20 and 23 of the NDPS Act. After the charges were explained, the appellant and the two other convicts pleaded not guilty and claimed to be tried. 3. To bring home the charge, the prosecution, examined altogether eight witnesses and exhibited various documents. No defence witness has been examined in this case. 4. P.W.1 Chandra Shekhar Mishra happens to be a Constable in the Excise Department and according to him, he was a member of the checking party which consisted of 15 persons. According to him, while checking party was at Village Jadua near Mahatma Gandhi Setu, three persons got down from a bus and started fleeing away, but on chase, they were apprehended and on search of their person in presence of the two witnesses, 7 kgs. of Charas was recovered and for that, a seizure list was prepared, which contained the signatures of the appellant and two other convicts besides two independent witnesses. 5. P.W.2 Vinay Kumar Sinha is another Constable, who in his deposition, stated about the constitution of the raiding party consisting of P.W.5 Vinodanand Kumar, Custom Superintendent, P.W.8 Navin Chandra, Custom Superintendent, P.W.6 Triloki Nath Prasad Custom Inspector besides other persons. According to him, during checking of the buses at Jadua, three persons tried to flee away and when apprehended, disclosed their names to be appellant and the two convicts. On their search, 7 kgs. of Charas was recovered. 6. P.W.3 Shyam Bihari is another member of the checking party, who happens to be the Constable in the same department. According to him, the appellant and the other two convicts were apprehended on suspicion and brought before the Superintendent of Custom. According to him, on enquiry by the Superintendent of Custom, they said that they are carrying Charas. Thereafter, according to this witness, the appellant and the two other convicts besides witnesses were brought to the Custom Office, were on search being conducted in the presence of the independent witnesses, 14 packets of Charas weighing 7 kgs. were recovered from their possession. 7. P.W.4 Rajiv Ranjan, at the relevant time, was posted as Inspector in the Customs, Preventive Circle at Hajipur. were recovered from their possession. 7. P.W.4 Rajiv Ranjan, at the relevant time, was posted as Inspector in the Customs, Preventive Circle at Hajipur. According to him, on 1.3.2003, a team was constituted for stopping the smuggling of foreign goods consisting of 14 persons including P.W.5 Vinodanand Kumar and P.W.8 Navin Chandra, both Custom Superintendents as also three Custom Inspectors, namely, P.W.7 Rajiv Ranjan and P.W.6 Triloki Nath Prasad and some Constables. According to him, the checking was conducted at Mohalla Jadua, north to the Ganga Setu and during that, a large number of buses passed through. From one of the buses, three persons got down and tried to flee away but were apprehended and brought before the Superintendent of Custom. According to him, two independent witnesses were also brought along with the aforesaid persons before the Superintendent of Custom. Search was made and from their possession, Charas was recovered. They disclosed their names to be that of the appellant and two other convicts. According to him, after the Charas was seized and the statements of appellant and two other convicts were recorded. Appellant Yogendra Singh is alleged to have confessed that Charas belonged to him and other two convicts are the carriers. The other two convicts are also alleged to have given confessional statements and supported the statement made by appellants Yogendra Singh. According to this witness, the seizure list of Charas was prepared and after taking its sample, one sample was sent to Govt. Opium and Alkaloid Works, Ghazipur and another to Neemuch for chemical examination. Appellant and the two other convicts were arrested and sent to Jail along with forwarding report. In the cross-examination, he has stated that the accused persons were not examined either before any other Gazetted Officer or the Magistrate. 8. P.W.5 Vinodanand Kumar in paragraph no. 15 of his cross-examination, has stated that he being himself a Gazetted Officer did not give option to the accused persons to be examined before the Gezetted Officer. In paragraph no.28 of his cross-examination, he has further stated that samples of 25 gms each were sent for chemical examination. 9. P.W.6 Triloke Nath Prasad is another Custom Inspector and the complainant in the case. According to him, on 1.3.2003, he was. checking the buses at village Jadua near Ganga Setu with his team. In paragraph no.28 of his cross-examination, he has further stated that samples of 25 gms each were sent for chemical examination. 9. P.W.6 Triloke Nath Prasad is another Custom Inspector and the complainant in the case. According to him, on 1.3.2003, he was. checking the buses at village Jadua near Ganga Setu with his team. Three persons got down from a bus and tried to flee away, but apprehended on suspicion and brought before the Superintendent of Custom along with other two independent witnesses. On search of one of the accused, who disclosed his name as Yogendra Singh (appellant), was found possessing 2 packets and other two accused, namely, Beerendra Ansari and Nabi Rasool Dewan possessing 6 packets each of Charas. According to this witness, as further inquiry was not possible there, the three accused persons along with witnesses were brought to the Custom Office at Hajipur and in the presence of the accused persons as also the witnesses, the packets recovered were weighed separately and each contained 500 gms. of Charas, the total being 7 kgs. According to this witness, all the accused persons voluntarily confessed their guilt which were recorded by another persons, on which they put their signatures. According to him, representative samples of Charas were taken and sealed in the presence of the witnesses and remaining Charas was also sealed in the separate packets. He has further said that out of four samples taken, one sample each were sent to Govt Opium and Alkaloid Works, Ghazipur and Neemuch respectively. According to him, on the following day, i.e. 2.3.2003, interrogatory statements of the accused persons were recorded by the Superintendent of Custom and thereafter, they were arrested and forwarded to the court along with the forwarding memo. According to him, the reports of the Chemical Examiner from both the places revealed that the samples contained Charas. In paragraph no.25 of his cross- examination, he has admitted that no effort was made to examine the accused persons before a Gazetted Officer. 10. P.W.7 Rajiv Ranjan, at the relevant time, was posted as Custom Inspector and according to him, the three accused persons, while fleeing away after getting down from the bus, were apprehended and brought before the Superintedent along with two other independent witnesses. There on search, two packets of Charas were recovered from appellant Yogendra Singh, whereas, 6 packets each from other two convicts. There on search, two packets of Charas were recovered from appellant Yogendra Singh, whereas, 6 packets each from other two convicts. According to him, each packet contained 500 gms. of Charas. He has stated that from all the packets, sample was taken, sealed in four packets and out of that, one packet each was sent for chemical examination at Ghazipur and Neemuch. 11. Besides the aforesaid oral evidence, forwarding reports, complaint petition, chemical examination report, interrogatory statements of all the accused and other documents have been brought on record as exhibits. The court below, on appraisal of evidence, came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly, convicted and sentenced the appellant as indicated above. 12. Mr. Yogesh Chandra Verma, Senior Advocate, appears on behalf of the appellant, whereas the Union of India is represented by Mr. Madhuresh Prasad. 13. Mr. Verma, submits that there is vital contradiction in regard to the place where search and seizure were effected and this itself, creates serious doubt in regard to the case of the prosecution. Mr. Prasad, however, submits that there is no contradiction in regard thereto and even if there is some contradiction, it is not so serious so as to doubt the prosecution story. 14. Having appreciated the rival submission, we do not find any substance in the submission of Mr. Verma. P.W.5 Vinodanand Kumar who is the Custom Superintendent before whom the accused persons were brought, P.W.6 Triloki Nath Prasad and P.W.8 Navin Chandra, in their evidence, have stated that after the accused persons were apprehended, brought before P.W.5 Vinodand Kumar, where they admitted possessing Charas and thereafter, they were brought to the Custom office, where search and seizure were effected. 15. From the evidence on record, we are also of the view that, in fact, after the accused persons were apprehended and brought before the Custom Superintendent, they disclosed that they are in possession of Charas. Thereafter they were taken to the Custom office, where seizure was effected and seizure memo as also other documents were prepared. We are of the opinion that the contradiction pointed out by Mr. Verma is not of such nature which in any way creates doubt in the prosecution case. 16. Mr. Thereafter they were taken to the Custom office, where seizure was effected and seizure memo as also other documents were prepared. We are of the opinion that the contradiction pointed out by Mr. Verma is not of such nature which in any way creates doubt in the prosecution case. 16. Mr. Verma, then submits that according to the prosecution, each of the samples contained 25 gms of Charas, whereas from the report of the Chemical Examiners, only 20.2 gms. and 17 gms. respectively were received at Ghazipur and Neemuch. According to Mr. Verma, this variance in the weight of sample sent and received by the Chemical Examiner clearly shows that its report is not in respect of the samples recovered from the accused persons and sent for chemical examination. In support of his submission, he has placed reliance on a Division Bench judgment of this Court in the case of Lala Tiwary & anr Union of India 2007 (2) PLJR 379 and our attention has been drawn to the following passage from the said judgment: "14. Having found that the conviction of the appellant cannot be based on their confessional statement, I have to revert as to whether prosecution has brought home the charge against them beyond all reasonable doubt from the other materials adduced during the trial. The prosecution having not proved as to where the sample was kept from 11th of January, 2001 to 2nd of February, 2001 i.e. date on which it was seized and the date on which it was sent for chemical examination respectively and further being variance in the weight of the sample sent and received in the Chemical Laboratory, I am constrained to observe that the prosecution has not been able to prove its case beyond all reasonable doubt that the sample collected from the appellants is the same which was tested by the Chemical Examiner. That being the position, appellants deserve to be given the benefit of doubt and I grant that to them accordingly." 17. Mr. Prasad, however, contends that this variance in weight is not of much significance as the contraband article is Charas and its weight was taken in moist condition. In this connection, he has drawn our attention to the seizure memo (Ext.3), which clearly shows that the weight of the Charas was taken in moist condition. 18. Mr. Prasad, however, contends that this variance in weight is not of much significance as the contraband article is Charas and its weight was taken in moist condition. In this connection, he has drawn our attention to the seizure memo (Ext.3), which clearly shows that the weight of the Charas was taken in moist condition. 18. We do not find any substance in the submission of Mr. Verma and the authority relied on is clearly distinguishable. 19. True it is that there is variance in weight of the sample sent and received in the Laboratory for chemical examination, but in our opinion, in the background of the fact that the Charas recovered was moist, this loss of weight after lapse of some time, cannot be said to be unnatural. In the case of Lala Tiwary (supra), the contraband article was Heroin and it was not the case of the prosecution that the same was moist. In that view of the matter, the authority relied on is clearly distinguishable. Accordingly, we reject this submission of Mr. Verma. 20. Mr. Verma, then submits that all the witnesses examined in the case are official witnesses and according to the prosecution, the search was effected in presence of the independent witnesses but they have not been examined, which creates doubt to the case of the prosecution. 21. We find no substance in the submission of Mr. Verma. Merely the fact that the witnesses to the seizure have not been examined, itself shall not create doubt to the case of the prosecution. In our opinion, if the witnesses examined are trustworthy, the case of the prosecution cannot be thrown out only on the ground of non-examination of the independent witnesses. 22. Mr. Verma draws our attention to the evidence of the witnesses in regard to the manner in which the sample was taken. He points out that it seem that the contraband seized from each of the accused were mixed and four samples were made out of that. He points out that one sample each was sent to the two Laboratory for chemical examination. From the aforesaid, according to Mr. Verma, it cannot be said with certainty that what has been recovered from each of the accused, in fact, contained Charas and as such, the appellant deserves to be given the benefit of doubt. He points out that one sample each was sent to the two Laboratory for chemical examination. From the aforesaid, according to Mr. Verma, it cannot be said with certainty that what has been recovered from each of the accused, in fact, contained Charas and as such, the appellant deserves to be given the benefit of doubt. In support of the submission, reliance has been placed on a Division Bench decision of this Court in the case of Shankar Yadav Vs. State of Bihar 2007 (2) PLJR 351 and our attention has been drawn to paragraph 14 of the said judgment, which reads as follows: "14. -Having considered the rival submissions, I find substance in the submission of the learned Counsel for the appellants. Sample was taken on 21.9.1988 and the same was forwarded to the chemical examiner vide letter dated 18.10.1998. The prosecution has not brought on record any evidence as to where the sample was kept during this period. Not only this the articles seized from each of the convicts were mixed together and out of that sample of two grams was taken which was sent for chemical examination. In that situation, it cannot be said with certainty that articles recovered from each of the convicts contained Heroin. Further only 1.6. grams of sample was received by the chemical examiner. The aforesaid infirmities lead us to conclude that the prosecution has not been able to prove beyond all reasonable doubt that the report of the chemical examiner is of the sample taken from the appellants and further what has been recovered from each of the appellants and Bipin Bihari Patel, was Heroin." (Underling mine) 23 Mr. Prasad, however, contends that from the two reports of the Chemical Examiner, it is evident that the sample contained Charas and no other article and as such, it has to be presumed that what has been recovered from each of the accused, contained Charas. 24. Having given our most anxious considerations to the submission advanced, we are not persuaded to hold that Charas was recovered from each of the accused. We are of the opinion that for bringing home the charge, the prosecution has to prove beyond all reasonable doubt hat what has been recovered from each of the accused, contained Charas. 24. Having given our most anxious considerations to the submission advanced, we are not persuaded to hold that Charas was recovered from each of the accused. We are of the opinion that for bringing home the charge, the prosecution has to prove beyond all reasonable doubt hat what has been recovered from each of the accused, contained Charas. Here, in the present case, the manner in which the sample was taken, it cannot be said with certainty that Charas was recovered from each of the accused. Once it is held so, we are of the opinion that the appellant deserves to be given the benefit of doubt. 25. As stated earlier, this appeal has been filed by Yogendra Singh and two other convicts, namely, Beerendra Ansari alias Suresh Ansari and Nabi Rasool Dewan have not chosen to file the appeal, may be on account of poverty. We are of the opinion that the case of the aforesaid two convicts stand on the same footing. It shall be travesty of justice, if the appeal of the appellant is allowed and the case of other two convicts, whose case stand on the same footing, do not get the attention of this Court on the ground that they have not preferred appal. We are of the opinion that this is a fit case in which, conviction of the aforesaid two other accused, namely, Beerendra Ansari alias Suresh Ansari and Nabi Rassol Dewan is also fit to be set aside. 26. The view, which we have taken and the course, which we have adopted in respect of two other convicts, is in conformity with the judgment of this Court in the case of Shankar Yadav (supra). 27. In the result, the appeal is allowed, the impugned judgment and order of conviction and sentence of the appellant Yogendra Singh as also of two other convicts, namely Beerendra Ansari alias Suresh Ansari and Nabi Rasool Dewan, who have not preferred appeal, are set aside. The appellant as also the aforesaid two convicts are in jail. They be set at liberty forthwith, unless required in any other case.