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2007 DIGILAW 1462 (PAT)

Shambhu Goel v. State Of Bihar

2007-09-05

ABHIJIT SINHA

body2007
Judgment 1. Heard the learned counsel for the petitioner as well as learned A.P.P for the State. 2. The petitioner who has been made to figure as accused in Forbesganj PS. Case No. 97/94 (Special Case No. 5/94) has prayed for quashing of the order dated 10.5.2007 passed by the Special Judge (Narcotic Drugs and Psychotropic Substance Act) (hereinafter referred to as the NDPS Act), Purnea directing the Investigating Officer to remain present in court with the seized heroin of this case for preparation of sample in presence of accused for sending the same to the Forensic Science Laboratory for chemical examination. 3. The aforesaid Police case was registered on the basis of the self- statement of one Ram Balak Pandey, Inspector of Police, Forbesganj, recorded on 19.6.94, inter alia stating therein that on receipt of confidential information to the effect that heroin was kept hidden, he alongwith S.I. Kirti Narain Paswan raided the joint house of Shambhu Goel and Matadin Agrawal in the presence of two independent witnesses and Shambhu Goel and from under the northern bed in the southern bedroom on the first floor he recovered a packet wrapped in English Newspaper and tied with strings and on top of the packet it was written "DBL Tiger Brand Heroin, 100% poison, N.W.I. POUND Special No. 33,000. Made in Thailand, Exp. date 1993-94". The material was seized under a seizure list which was attested by the two witnesses but Shambhu Goel on request being made neither signed the seizure list nor received a copy thereof. A sample of the seized article was sent to the Forensic Science Laboratory, Patna for chemical examination and after testing the Laboratory at Patna reported that no trace of heroin or any psychotropic drug could be detected in the white powdery substance. The samples were also sent to the Central Revenue Control Laboratory, New Delhi and the report indicated that white powder answered positive test for starch but did not answer positive to test for morphine and diacetyl morphine. The photocopies of these two reports have been appended as annexures 2 and 2/1. In accordance with the reports, the Investigating Officer submitted a final form showing the case to be false. However, the court on receipt of the final form ordered for further investigation vide order dated 16.8.2000 which was challenged by the petitioner before this court but the same was dismissed. In accordance with the reports, the Investigating Officer submitted a final form showing the case to be false. However, the court on receipt of the final form ordered for further investigation vide order dated 16.8.2000 which was challenged by the petitioner before this court but the same was dismissed. However, curiously matter remained in limbo for more than five years from the date of the order for further investigation which prompted the petitioner to file a petition for dropping the proceeding and not to take cognizance of the offence. The said petition was disposed of by order dated 18.5.06 with observation of the Special Judge that if the Investigating Officer of the case thinks proper he may take sample according to law in presence of the accused and get the same examined by proper authority. It appears that the Investigating Officer vide charge-sheet no. 13 of 2006 dated 17.1.2006 submitted charge-sheet in this case without taking any step of preparing fresh sample and get it examined by the proper authority. 4. Accordingly, the petitioner filed Criminal Misc. No. 36397 of 2005 which was disposed of vide order dated 20.12.2006 wherein it has been held that "as a last chance the Trial Court is directed to proceed with the matter and pass appropriate directions so that the case is disposed of expeditiously preferably within a period of nine months". 5. It has been submitted on behalf of the petitioner that on receipt of the order of this court the court below has passed the impugned order and as such instant application is being filed. In this connection it was sought to be pointed out that vide order dated 18.5.06 the Special Judge while entertaining the petition for dropping the proceeding as filed by the petitioner gave open option to the Investigating officer to take sample according to law in presence of the petitioner and get it examined by the proper authority as he thinks proper but the present order directing the Investigating Officer to remain present in court with the seized heroin for preparation of sample of the seized heroin in presence of the petitioner was not proper. Learned counsel further sought to point out that admittedly as early as in the year, 1994 when the seizure was made sample of the seized items were sent to Forensic Science Laboratory Patna, and the Laboratory at Delhi who did not find the sample to be heroin or any psychotropic substance and thereafter charge-sheet had been submitted on completion of investigation and as such there was no occasion or reason for the Special Judge to pass the impugned order directing the Investigating Officer of the case to be present in court with the seized heroin for preparation of fresh sample. 6. In support of his submission learned counsel sought to place reliance on the case of Valsala vs. State of Kerala ( AIR 1994 SC 117 ) and Rajendra Prasad vs. State of Bihar, reported in 2004(2) BCCR 247(PHC)[: 2004(3) PLJR 249 ] In the case of Valsala (supra) it was held by the Apex Court that the delay of more than three months in sending seized article to Laboratory for analysis was bad in law and in the case of Rajendra Prasad (supra) the Division Bench of Patna High Court held that delay of one year from the date of seizure and its production in court was also bad. 7. The grievance of the petitioner is that once the report of the chemical laboratory is available and the charge-sheet has already been filed after reinvestigation in the matter, there was no scope for directing the Investigating Officer to be present in court with the seized heroin for preparation of fresh sample to be sent for chemical examination and that too after 12 years. 7. It is not known whether seized heroin was sealed and kept in proper custody and there had been no tampering therewith. 8. Learned counsel also sought to point out that under section 55 of the NDPS Act the Officer Incharge is required to take charge and keep seized article in safe custody and will fix a seal to such article. Therefore, in the event if the charge of the seized article was not taken by the Officer Incharge and was not sealed by him and was not kept in safe custody then in such a situation the benefit will have to go to the accused if the provision of Section 55 of the Act had not been complied properly. 9. Therefore, in the event if the charge of the seized article was not taken by the Officer Incharge and was not sealed by him and was not kept in safe custody then in such a situation the benefit will have to go to the accused if the provision of Section 55 of the Act had not been complied properly. 9. Admittedly, sample sent for chemical analysis to the Laboratories at Patna and New Delhi had reported that there was no trace of heroin or any psychotropic drug and that white powdery substance answered positive to test for starch but did not answer for morphine, those reports, notwithstanding further investigation was ordered whereafter charge-sheet was submitted. Now, there is no point after a lapse of 13 years for the Special Judge to direct the Investigating Officer to prepare a fresh sample from the heroin seized way back in 1994 and send it for chemical analysis. It is not for the court to fulfil the lacuna in the prosecution case and no direction can be given by the court in order to fill up obvious lacuna or to direct the prosecution to act in a particular manner. 10. Due regard being had to the facts and circumstances of the case, the impugned order dated 10.5.2007 cannot be permitted to stand and is required to be quashed and is quashed. 11. In the result, this application is allowed. The court of the Special Judge, (NDPS Act), Purnea is directed to proceed with the trial on the materials already available and dispose of trial as directed by the order dated 20.12.06 passed in Cr. Misc. No. 36397/05. Since much time has been wasted over unnecessary technicalities the learned Special Judge will make effort to dispose of the aforesaid case within a period of six months from the date of receipt of this order.