Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 272 (PAT)

Shankar Yadav v. State Of Bihar

2007-02-06

CHANDRAMAULI KR.PRASAD, REKHA KUMARI

body2007
Judgment CHANDRAMAULI KUMAR PRASAD, J. 1. Sixteen persons including the appellants and Bipin Bihari Patel were put on trial for offence under Section 22 of the N.D.P.S. Act. The 5th Additional Sessions Judge, Rohtas at Sasaram by judgment dated 20th of September, 2004 passed in N.D.P.S. Kargahar P.S. Case No. 80 of 1998 acquitted all the accused persons excepting accused Shankar Yadav, Bulaki Kahar, Birendra Pandey alias Bindi Pandey, Mutur Mian and Bipin Bihari Patel and sentenced appellants Birendra Pandey alias Bindi Pandey and Shankar Yadav to suffer rigorous imprisonment for a period of 20 years and fine of Rs. 2 lacs each and in default thereof to undergo simple imprisonment for a period of two years. So far as appellants Bulaki Kahar, Mutur Mian and accused Bipin Bihari Patel are concerned, they have been sentenced to undergo rigorous imprisonment for a period of ten years and fine of Rs. 1 lac each, in default of payment of fine to undergo simple imprisonment for a period of one year. 2. Shankar Yadav, Bulaki Kahar, Birendra Pandey alias Bindi Pandey and Mutur Mian aggrieved by their conviction and sentence had filed separate appeals, which have been registered as Criminal Appeal No. 758 of 2004, Criminal Appeal No. 810 of 2004, Criminal Appeal No. 811 of 2004 and Criminal Appeal No. 93 of 2005. However, convict Bipin Bihari Patel has not preferred any appeal. 3. All the appeals were heard together and are being disposed of by this common judgment. We have also examined the validity of conviction and sentence of Bipin Bihari Patel. 4. According to the First Information Report, on a confidential information that appellant Shankar Yadav is involved in sale and purchase of Heroin and in that Vindhayachal Kamkar (since acquitted) and appellant Binrendra Pandey alias Bindi Pandey are partners and about 15 to 20 persons had collected at the house of Shankar Yadav, the Officer -Incharge of the Police Station along with the raiding party raided the premises of Shankar Yadav and found twelve persons sitting in a room to the east of the house. According to the First Information Report, seeing the police party three persons fled away, but appellant Birendra Pandey alias Bindi Pandey was apprehended and from him Heroin kept in a packet was recovered. According to the First Information Report, seeing the police party three persons fled away, but appellant Birendra Pandey alias Bindi Pandey was apprehended and from him Heroin kept in a packet was recovered. On enquiry, Birendra Pandey alias Bindi Pandey disclosed the names of the accused persons, who had fled away i.e. appellants Shankar Yadav, Bulaki Kahar and Vindhyachal Kamkar (since acquitted). Search was made of the persons apprehended and from them 36 packets of Heroin total weighing 5 grams, which included three packets Of Heroin from tea-shirt of appellant Mutur Mian was recovered. The weight of the Heroin recovered from appellant Birendra Pandey alias Bindi Pandey was 25 grams. According to the First Information Report, a seizure list was prepared in presence of the two independent witnesses, which was signed by the accused persons apprehended at the spot. According to the prosecution, one of the members of the raiding party was an Executive Magistrate and in his presence a sample of two grams of Heroin was taken out for chemical examination. 5. On the basis of the aforesaid information Kargahar P.S. Case No. 80 of 1998 was registered under Sections 17, 18, 22 and 27 of the N.D.P.S. Act. 6. On examination the sample taken was found to be containing Heroin. Hence, the police after investigation submitted charge-sheet and ultimately appellants besides others were put on trial for possessing and dealing in Heroin punishable under Section 22 of the N.D.P.S. Act. 7. Appellants as also convict Bipin Bihari Patel pleaded not guilty and contended that they have been falsely implicated in the case but no defence witness has been examined. 8. Prosecution in support of its case had altogether examined eight witnesses. Out of whom, PW 1 Dhananjay Sharma (an Assistant Sub-Inspector of Police), PW 4 Ram Prit Yadav (Hawaldar), PW 5 Bimal Singh (constable), PW 7 Vinay Kumar Singh (Sub-Inspector of Police) and PW 8 Naveen Prasad (Sub-Inspector of Police) are the members of the raiding party. According to their evidence, on the confidential information that appellant Shankar Yadav is involved in sale and purchase of Heroin and in that appellant Bindi Pandey and Vindhyachal Kamkar are partners and a large number of persons had collected at the residence of appellant Shankar Yadav, they raided the house of said Shankar Yadav on 21.8.1998 and found twelve accused persons including Mutur Mian sitting in a room. They have also stated that Birendra Pandey alias Bindi Pandey was apprehended, but three accused persons managed to flee away. According to them, appellant Birendra Pandey alias Binid Pandey disclosed the names of three accused persons, who had fled away seeing the raiding party as appellant Shankar Yadav, appellant Bulaki Kahar and Vindhyachal Kamkar (since acquitted). They have also stated that sample was taken and sent for chemical examination. The chemical examiner in his report (Ext. 2) found the sample to be containing Heroin. 9. In order to bring home the charge, the prosecution also examined PW 2 Binod Kumar Singh and PW 3 Jag Narayan Singh, witnesses to the seizure, but they have not supported the case of the prosecution and have been declared hostile. 10. Mr. Subodh Kumar Sinha, Mr. Suraj Narain Pd. Sinha and Mrs. Anjana Prakash appear on behalf of the appellants in Criminal Appeal No. 758 of 2004, Criminal Appeal No. 810 of 2004 and Criminal Appeal No. 811 of 2004 respectively. Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor appears on behalf of the State. Mrs. Babita Kumari appears as Amicus Curiae in Criminal Appeal No. 93 of 2005. 11. Various submissions have been advanced on behalf of the appellants to assail the judgment of conviction and sentence but as the appeals are to succeed on a very short point, I deem it inexpedient to either incorporate or answer those submissions. 12. Learned counsel for the appellants submitt that according to the prosecution, the sample was taken on 21.9.1998 and it was on 14.10.1998 that an application was filed for sending the sample for chemical examination. They point out that there is nothing on the record to show where the sample was kept for this long period. They also contend that according to the prosecution 25 grams of Heroin is alleged to have been recovered from the possession of appellant Birendra Pandey alias Bindi Pandey and three packets from appellant Mutur Mian and four packets from convict Bipin Bihari Patel separately but the articles recovered from each of the accused were mixed and then sample taken. They submit that as sample was taken after the articles recovered from each of the persons were mixed, it cannot be said with certainty that Heroin was recovered from each of the appellants and said Bipin Bihari Patel. They submit that as sample was taken after the articles recovered from each of the persons were mixed, it cannot be said with certainty that Heroin was recovered from each of the appellants and said Bipin Bihari Patel. They contend that before bringing home the charge it has to be proved beyond all reasonable doubt that article recovered from each of the convicts was Heroin. The manner in which the sample was taken, it cannot be said with certainty that Heroin was recovered from each of the convicts, contend the learned counsels. 13. Mr. Lala Kailash Bihari Prasad. Additional Public Prosecutor submits that as the appellants were involved in sale and purchase of Heroin, even if it is assumed that Heroin was not recovered from each of the convicts, they are liable to be held guilty. 14. Having considered the rival submissions. I find substance in the submission of the learned counsel for the appellants. Sample was taken on 21.9.1998. Application for sending the same was filed on 14.10.1998 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 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 recovered 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. 15. Although Bipin Bihari Patel has not preferred any appeal but his case also stands in the same footing as that of the other appellants. Accordingly I give benefit of doubt to the appellants as also said Bipin Bihari Patel. 16. In the result, the appeals are allowed, impugned judgment of conviction and sentence of the appellants as also Bipin Bihari Patel is set aside. Accordingly I give benefit of doubt to the appellants as also said Bipin Bihari Patel. 16. In the result, the appeals are allowed, impugned judgment of conviction and sentence of the appellants as also Bipin Bihari Patel is set aside. All the appellants as also Bipin Bihari Patel are in jail, they be set at liberty forthwith unless required in any other case. Rekha Kumari, J. 17 I agree.