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2007 DIGILAW 1081 (PAT)

Suleman Sain v. State Of Bihar

2007-07-06

CHANDRA MOHAN PRASAD

body2007
Judgment Chandra Mohan Prasad, J. 1. This appeal is against the judgment dated 7.5.2004/ 10.5.2004 of the 5th Additional Sessions Judge, Sasaram passed in Kargahar P.S. Case No. 101/91 whereby the appellant has been convicted under Secion 22 of the N.D.P.S.Act. 1985 (hereinafter referred to as the Act) and sentenced to R.I. for ten years and a fine of Rs.1 lakh and in default of payment of fine to undergo S.I. for one year. 2. The prosecution commenced with the written report signed by the informant Asgar Ali as filed before the officer-in-charge. Karghar P.S. with the allegation that the appellant Suleman Sain was making noise and nuisance in Kargahar Bazar after consuming heroin and that he was apprehended by the informant with the assistance of people of the locality and then he was produced at the police station and that one polythene containing heroin was recovered from his pocket. The further case of proseuction is that the appellant was searched at the police station and the heroin kept in a paper, wrapped in polythene was recovered from his pocket. Seizure list (Ext.1) was prepared in presence of witnesses. Haridwar Singh (P.W. 1) and Aurangjeb (not examined) as well as the informant (P.W. 3). The prosecution story also appears to be like this that the seized heroin was sent for chemical examination. The attested copy of the report received from FSL. Bihar, Patna was put on the record as (Ext. 3) which mentions that the sample contained was found to be heroin. 3. As many as three witnesses were examined by prosecution. P.W. 1 Haridwar Singh is a seizure witness and he deposed that at the relevant time of occurrence one Puria containing heroin was recovered from the pocket of the appellant at bus stand Kargahar. This witness also says that the seizure list was prepared at the bus stand itself towards North of the place of recovery where there was a temple and thereafter a block office. He also deposed that the C.O.,B.D.O. or doctor of the block were not present there at the time of recovery. Thus according to this witness the Puria containing heroin was recovered from the possession of the appellant at the bus stand, Kargahar and that seizure list was also prepared at the bus stand itself. Learned counsel appearing as amicus curiea for the appellant referred the seizure list(Ext. Thus according to this witness the Puria containing heroin was recovered from the possession of the appellant at the bus stand, Kargahar and that seizure list was also prepared at the bus stand itself. Learned counsel appearing as amicus curiea for the appellant referred the seizure list(Ext. 1) which mentions place of seizure at Kargahar P.S. and the seizure list is in the writing of A.S.I. i.e. a police officer. Thus, according to the seizure list recovery was made at the P.S. and the seizure list was also prepared by the police officer at the police station. But there is a material contradiction in view of the place of recovery as according to the evidence of the P.W.1 the recovery was made at the bus stand and the seizure list was also prepared there. 4. P.W. 2 Dip Nath Pandey. was examined by prosecution as a witness on the point of recovery. But this witness has turned hostile and he deposed that no recovery was made in his presence. When attention of this witness was drawn by the learned A.P.P. towards his previous police statement, he denied to have given any statement before the police, supporting the recovery from the possession of the appellant. Prosecution has not examined the I.O. of the case to prove any police statement of this witness. Thus, there is no evidence to show that this witness had supported the recovery in his statement before police. 5. P.W. 3 Md. Asgar Ali is the informant himself. He deposed that at the time of occurrence while he was opening his shop, he saw that the appellant who had consumed heroin was creating noise and nuisance which attracted many people and that he (informant) with the assistance of people there apprehended the appellant and took him to the police station. He also deposed that heroin was recovered from the pocket of the appellant. He further deposed that he had signed the written report (fardbeyan) filed at the police station and his signature was proved on the written report as Ext.1/1. However, he was unable to say who had written the contents of the written report filed at the police station. In the cross-examination he deposed that at the police station he had put his signature on the paper but at that time the paper was blank. However, he was unable to say who had written the contents of the written report filed at the police station. In the cross-examination he deposed that at the police station he had put his signature on the paper but at that time the paper was blank. Thus, the informant says that at the time when he had put his signature on the written report it was blank. 6. The proseuction did not examine any other witness. During argument, the learned counsel appearing for the appellant argued that in this case, the seizure is said to have been made at the P.S. but any police officer has not come to support the recovery. There is also material contradiction about the place of recovery. According to the informant the recovery was made at the police station but the P.W. 1 who is a seizure list witness says that the recovery was made at the Kargahar bus stand and that the seizure list was also prepared at that place. Thus a serious doubt is entertained over the place where the recovery was made. 7. Learned counsel also pointed out that in this case there is no evidence to show that the seized article was ever weighted or sealed by the authority who recovered it. There is nothing in the evidence of witnesses to show as to what was the weight or the quantity of the article recovered from the Puria which was found in the pocket of the appellant. There is also no evidence to show that the seized Puria was sealed. It is also not shown as to how and in what manner the seized article was dealt with or sent to the FSL for chemical examination. 8. The recovery is alleged at the P.S. and seizure list is also said to have been prepared there but any police officer has not been examined who made the recovery or prepared the seizure list. 9. Lastly, the learned counsel for the appellant raised the question that the mandatory provisions under Section 50 of the Act has not been complied in this case and thus non-compliance of it makes the recovery suspicious and it goes to vitiate the conviction. In support of the contention, the learned counsel cited the decision of Apex Court in the case of State of Punjab vs. Baldeo Singh & Ors. reported in 1999, AIR SCW, page 2494. In support of the contention, the learned counsel cited the decision of Apex Court in the case of State of Punjab vs. Baldeo Singh & Ors. reported in 1999, AIR SCW, page 2494. Section 50 of the Act provides that when any officer duly authorised under Section 42 of the Act is about to search any person under the provisions of Sections 41, 42 or Section 43, he will if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentiones in section 42 or the nearest Magistrate. 10. Learned counsel also argued that there is no evidence to show that the appellant was ever informed that he had a right to be searched in presence of a Gazetted Officer. It was the duty of the officer making search and recovery to intimate the appellant that he had a right to be searched before a Gazetted Officer. 11. The Apex Court has held in the case of Baldeo Singh (supra) that requirements of Section 50 about intimating the person to be searched that he has right to be searched before a Gazetted Officer is sacrosanct and indefeasible and that it can not be disregarded by the prosecution except at its own peril and that non-compliance of it, would cause prejudice to the accused and render the recovery of illicit article suspect and vitiate the conviction. 12. In the instant case there has been a clear non-compliance of the provisions of Section 50 of the Act. The appellant was not informed of his right to be searched before a Gazetted Officer nor the officer conducting the search and making the recovery made it in presence of a Gazetted Officer. According to the evidence of P.W. 1 the bus stand where recovery was made situates a close distance of block office where Gazetted Officer remains. And in view of what has been held by the Apex Court the noncompliance of the provision of Section 50 makes the recovery suspect and it also vitiates the conviction. So far the prosecution evidence is concerned. I find that the evidence is also insufficient and contradicting and it does not go to prove the recovery beyond shadows of doubt. And in view of what has been held by the Apex Court the noncompliance of the provision of Section 50 makes the recovery suspect and it also vitiates the conviction. So far the prosecution evidence is concerned. I find that the evidence is also insufficient and contradicting and it does not go to prove the recovery beyond shadows of doubt. In such view of the matters, I feel that the prosecution has not been able to prove its case beyond the shadows of doubt and the appellant is entitled to benefit of doubt. Thus, giving benefit of doubt, the appellant is acquitted of the charge. 13. In the result, this appeal is allowed.