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2007 DIGILAW 342 (PAT)

Janaki Devi Vidyapati Yadav v. State Of Bihar

2007-02-14

CHANDRAMAULI KR.PRASAD, REKHA KUMARI

body2007
Judgment Rekha Kumari, J. 1. This appeal is directed against the judgment dated 20.2.2004 passed by the Special Judge (N.D.P.S. Act), Buxar in N.D.P.S. Act Case No. 36/2002 convicting the appellants under Sec.21(c) for illegally possessing Heroin and under Sec.20(b)(ii)(B) for illegally possessing Ganja, both under the N.D.P.S. Act (hereinafter referred to as "the Act) and sentencing the appellant Janaki Devi to undergo R.I. for 14 years and to pay a fine of Rs. 2 lacs in default to undergo R.I. for two years for the offence under Sec.21 (c) of the Act and to undergo R.I. for three years and to pay a fine of Rs. 20,000.00 and in default to undergo R.I. for six months and sentencing the appellant Vidyapati Yadav to undergo R.I. for ten years and to pay a fine of Rs. 1 lac and in default to undergo R.I. for two years for the offence under Sec.21(c) of the Act and to undergo R.I. for two years and to pay a fine of Rs. 10,000.00 and in default to undergo R.l. for six months for the offence under Sec.20(b) (ii) (B) of the Act with a further direction that the substantive sentences against the appellants would run concurrently but the sentences in default of payment of fine would run consecutively. 2. The prosecution case, in brief, is that on 19.12.2002 at 6.15 A.M. Sanjay Kumar, Circle Inspector cum Officer In-Charge, Buxar Town P.S., received confidential information that co-accused Sabhapati Y. dav @ Master Yadav of Mohalla Budhanpurwa, RS. Buxar, himself was engaged in illegal trade of Heroin and he also got business done by his wife and son, and if there was immediate raid of the house, there was possibility of recovery of Heroin. On getting this information, he reported the matter to the S.P., Buxar and made an entry in this regard in the Station diary. The S.P. sent his letter authorising him to search the house of Sabhapati Yadav. The Inspector then formed a raiding party and alongwith the raiding party and armed force reached near the house of Sabhapati Yadav. After locating the house, he called two independent witnesses Birendra Yadav and Dinesh Kumar of that locality. In the meantime S.I., Buxar Town P.S., alongwith some Havildars reached there, to assist him. The Inspector then formed a raiding party and alongwith the raiding party and armed force reached near the house of Sabhapati Yadav. After locating the house, he called two independent witnesses Birendra Yadav and Dinesh Kumar of that locality. In the meantime S.I., Buxar Town P.S., alongwith some Havildars reached there, to assist him. The Inspector, in presence of the two independent witnesses of the locality, the two appellants who were in the house and the members of the raiding party, searched the house of accused Sabhapati Yadav after observing necessary formalities, and from the north east room of the house recovered, from beneath the bed of a cot, 550 grams of Heroin like substance kept in a reksin handbag and from below the cot, 3 Kgs. of Ganja kept in Polythene packet. Besides this, weights and measures and Rs. 520.00 in cash and spoon were also recovered from the room. The appellants disclosed that they alongwith the co-accused Sabhapati Yadav were engaged in trade of Heroin and Ganja. The Inspector then took the samples of Heroin and Ganja and marked them and prepared seizure list and arrested the appellants. 3. On the self statement of the Inspector Sanjay Kumar, Fard Beyan (Ext. 4) was recorded at the house of co-accused Sabhapati Yadav, on the basis of which formal F.I.R. was drawn. During investigation one sample of Heroin like substance and one sample of Ganja seized were sent to the Forensic Science Laboratory and they were found to be Heroin and Ganja. The police after completing investigation submitted chargesheet against the appellants and the investigation against the co-accused Sabhapati Yadav continued. 4. The appellants were charged under Sec.21(c) of the Act for illegally possessing 550 grams of Heroin and under Sec.20(b) (ii) (B) of the Act for illegally possessing 3 Kgs. of Ganja, for sale. They pleaded not guilty to the charges. Their defence is a total denial of the whole occurrence. 5. The prosecution examined in all seven witnesses to prove the charges. Among them P.W.1 Tirthraj Tiwary, A.S.I.,P.W.2 Md. Sahabuddin Khan, O.C., are witnesses on point of search and seizure. P.W.3 is Sanjay Kumar, the informant. P.W.4 Binay Kumar Sharma, O.C. is the I.O. of the case. P.W.5 is Dr. K.Choudhary, Technical Officer, FSL, Patna. 5. The prosecution examined in all seven witnesses to prove the charges. Among them P.W.1 Tirthraj Tiwary, A.S.I.,P.W.2 Md. Sahabuddin Khan, O.C., are witnesses on point of search and seizure. P.W.3 is Sanjay Kumar, the informant. P.W.4 Binay Kumar Sharma, O.C. is the I.O. of the case. P.W.5 is Dr. K.Choudhary, Technical Officer, FSL, Patna. P.W.6 Bhola Shankar, S.I. Incharge Malkhana, is a formal witness who had produced material exhibits I, 1/1, II, 11/1, II/2 from the Town RS. Malkhana. P.W.7 Kangra Uraon is a part I.O. who had simply submitted the charge sheet. 6. The appellants did not examine any witness. 7. The learned Special Judge after considering the evidence of the above witnesses and the exhibits of the case, convicted the appellants and sentenced them as mentioned above. 8. The point for determination in this appeal is whether the appellants committed the above offences and the learned Special Judge was justified in convicting and sentencing them as mentioned above. 9. P.W.3, the informant, Inspector Sanhay Kumar, has stated that on 19.2.2002 he was O.C. Buxar town PS. and on that date at 6.15 A.M. He received confidential information that at Budhanpurwa, RS. Buxar, District Buxar, Heroin in large quantity was kept in the house of Sabhapati Yadav @ Mater Yadav and if the house was immediately raided the Heroin would be recovered and that Sabhapati Yadav alongwith his wife and son was engaged in the trade of Heroin. He recorded this information in the Station diary (Entry No. 684 dated 19.10.2002) and informed the S.P., Buxar telephonically and received the authorisation letter (Ext.5) to search the house of Sabhapati Yadav. He then formed a raiding party comprising of S.I. Sahabuddin Khan (P.W.2), A.S.I. Tirthraj Tiwary (RW.1) and others and left for the house of the accused at 7.00 A.M. He located the house and near the house called two independent witnesses Birendra Yadav and Dinesh Kumar Gupta of the locality and informed them of his purpose. They then reached the house of the co-accused and called him from outside the door. His son the appellant Vidyapati Yadav came out and on seeing the police party, he called his mother, and his mother Janaki Devi came out. He (Inspector) informed them about the purpose of their visit and also showed the authorisation letter of the S.R They gave their consent (Ext.2/3) for searching the house. His son the appellant Vidyapati Yadav came out and on seeing the police party, he called his mother, and his mother Janaki Devi came out. He (Inspector) informed them about the purpose of their visit and also showed the authorisation letter of the S.R They gave their consent (Ext.2/3) for searching the house. The independent witnesses also were shown the authorisation letter and they put their signatures (Exts. 1/6, 1/7) on it. The witness has further stated that in the meantime S.I. Asharfi Mahto and others also reached there to assist him and in presence of the raiding party, two independent witnesses and the appellants, after giving their search, he took the search of the house. During search from the northern bed room, from beneath the bed 550 grams of Heroin like substance kept in brown reksin handbag was recovered, one small brass balance, weights of 5 grams, 10 grams, 20 grams (two in number), 100 grams and one currency note of Rs. 100/-, two notes of Rs. 20/-, 38 notes of Rs.10.00 and one small steel spoon were also recovered from the same room. Then from- the same room, from under the cot, 3 Kgs. of Ganja was also recovered which was kept in a green reksin air bag. On interrogation, the appellants confessed that they alongwith the co-accused Sabhapati Yadav were engaged in sale of Heroin and Ganja. 10. The witness has further stated that they seized the recovered Heroin and Ganja and prepared seizure list (Ext.3) which was endorsed by the two witnesses {vide Exts. 2 and 2/1). The appellants were given copy of the seizure list and they made their endorsements (Exts. 2/2, 1/3) on it. The endorsement shows that in their presence the articles mentioned in the seizure list were seized and they received one copy of the seizure list. The evidence of this witness, then, is that he took two samples of 5 grams each from the seized Heroin and kept them in two separcue containers and sealed them in presence of the witnesses and the appellants and marked one container as S1 and other container S1 (duplicate) and sealed the remaining Heroin in another container and marked the container as P1 he seized the reksin handbag, weights, measures, currency notes and sealed them together at one place and marked it as P2. Similarly, from the seized Ganja, he took samples in small quantity in two containers and sealed them and marked them as S3 and S3 (duplicate) and sealed the remaining Ganja separately and marked it as P3. He has stated that the witnesses, the appellants and the police witnesses also put their signatures on the sealed packets. His evidence then is that he prepared an impression of the seal (Ext.7) by which the above samples and the remaining seized substances were sealed, and the witnesses and the appellants put their signatures on it. He then arrested the appellants and recorded his self statement (Ext.4) and then went to the Police Station alongwith the arrested appellants and seized articles and kept the samples and the remaining articles in Malkhana, and sent written information (Ext.8) about the recovery etc. to the S.R and entrusted the-investigation to S.I. Binay Kumar. 11. P.W.1 Tirthraj Tiwary, A.S.I, and RW. Md. Sahabuddin Khan, S.I., who were members of the raiding party, have fully supported the evidence of P.W.3 (informant). They have stated that they had accompanied the informant and in their presence and in the presence of the appellants and two independent witnesses, the house of the co-accused Sabhapati Yadav was searched after observing the formalities, and from the north-east room of the house, from under bed 550 grams of Heroin kept in reksin bag, and from under the cot 3 Kgs. of Ganja were recovered and besides these, weights and measures were also recovered and they were seized. They have also stated that in their presence, samples of Heroin and Ganja seized were taken in containers and sealed, and the remaining Heroin and Ganja were also sealed. They have also stated that the witnesses had signed the seizure list and the appellants had also signed the seizure list in token of receipt of the copy of the seizure list. P.W. 1 has also stated that he and S.I. Sahabuddin had also signed the seizure list. He has proved his signature (Ext.1/1) and the signature of Sahabuddin (Ext.1) on the seizure list. He has further proved the signatures (Exts. 2, 2/1) of the independent witnesses and the endorsement (Ext. 1/2) made by the appellant Vidyapati Yadav and the signature of the appellant Janaki Devi (Ext.1/3) on the seizure list. 12. He has proved his signature (Ext.1/1) and the signature of Sahabuddin (Ext.1) on the seizure list. He has further proved the signatures (Exts. 2, 2/1) of the independent witnesses and the endorsement (Ext. 1/2) made by the appellant Vidyapati Yadav and the signature of the appellant Janaki Devi (Ext.1/3) on the seizure list. 12. P.W. 4 the I.O. has stated that during investigation he sent the samples marked S1 and S3 to Forensic Science Laboratory, Patna on 20.12.2002 itself with a forwarding memo (Ext.1) signed by the Special Judge, which was received at the Laboratory on 23.12.2002. 13. P.W.5 Kapileshwar Choudhary, Technical Officer, FSL, Patna, has stated that on 23.12.2002 he received parcels of Buxar Town P.S. Case No. 325/2002 sent through Special Messenger. The parcels were enclosed within the cloth cover and sealed and the impression of the seal tallied with the seal impression forwarded to him. He has further stated that in the two parcels there was one container marked S1 said to contain sample of Heroin seized from the accused and the other container marked S3 said to contain sample of Ganja seized from the accused. He has further stated that on chemical analysis he detected Diacetyl Morphine Heroin in the tin container S1 and detected that the dry brown flowering and fruiting vegetable substance contained in the container S3, was Ganja. He prepared his report (Ext. 10) which was counter signed by the Director of the Laboratory. 14. P.W.6 the Malkhana In-charge has produced in court from the Malkhana the duplicate samples of Heroin and Ganja bearing the signatures of the informant, Sahabuddin and others and they have been marked as Material Exts. I, 1/1. He has also produced the remaining Heroin, weights, measures etc., Ganja marked P1, P2, P3 bearing the signatures of the informant and other witnesses and they have been marked as material Ext. II, 11/1 and II/2. 15. I, 1/1. He has also produced the remaining Heroin, weights, measures etc., Ganja marked P1, P2, P3 bearing the signatures of the informant and other witnesses and they have been marked as material Ext. II, 11/1 and II/2. 15. Thus, from the evidence of the above witnesses, it appears that the informant, Inspector-cum-Officer In-charge, Buxar Town P.S. on getting an information that co-accused Sabhapati Yadav alongwith the appellants deal in Heroin and that if the house was immediately searched Heroin may be recovered, he made a note of this information in the Station Diary and informed the S.P. regarding it and the S.P, Buxar as provided under Sec. 41 (2) of the Act, authorised the informant to search the house and then the informant after forming a raiding party went to the house of the co-accused and in presence of the independent witnesses and the appellants, who were in the house, after observing all the legal formalities searched the house and recovered 550 grams of Heroin like substance and 3 Kgs of Ganja alongwith weights and measures and seized them and duly prepared the seizure list and handed over a copy of the seizure list to the appellants and then duly took the samples of the seized articles and sealed them and also sealed the remaining contrabands and arrested the appellants and took them to the Police Station alongwith the seized articles and on the same date the I.O. sent one sample each of the seized contrabands to the Forensic Science Laboratory, Tatna for chemical examination and other sample alongwith the remaining sealed contrabands were kept in PS. Malkhana, and after he returned to the P.S. He informed the S.P. about the seizure etc. 16. The evidence also shows that in the Forensic Science Laboratory on 23.12.2002 the sealed packets of the samples alongwith impression of seal were received, and on chemical examination the packet containing Heroin like substance was found to be Diacetyl Morphine commonly known as Heroin which was a highly intoxicating addictive narcotic drug and the other packet said to contain the Ganja, was found to contain Ganja. 17. There is absolutely nothing in the evidence of the above witnesses to disbelieve them. 18. 17. There is absolutely nothing in the evidence of the above witnesses to disbelieve them. 18. In this case two independent witnesses, namely, Birendra Yadav and Dinesh Kumar Gupta, who are said to be present at the time of search and seizure of the drugs, of course, have not been examined and only the police witnesses have been examined. But as there is nothing in the evidence of the police witnesses to disbelieve them, only in absence of the evidence of two independent witnesses, the prosecution case cannot be said to have been not proved. 19. I am thus convinced that the prosecution has proved beyond reasonable doubt that on the date of occurrence 550 grams of Heroin, a derivative of opium, and 3 Kgs. of Ganja were recovered from the house of the co-accused Sabhapati Yadav @ Master Yadav of Mohalla Budhanpurwa, Buxar wherein the appellants were present. The evidence is also clear that some weights and measures were recovered from the room from which the above drugs were recovered. It is thus evident that drugs were kept for sale. There is nothing on record to show that there was any licence with regard to possession or sale of the above drugs. The drugs, therefore, were illegally possessed for sale. 20. The main question in this case, however, is whether the appellants, who are admittedly wife and son of co-accused Sabhapati Yadav and were present in the house during search can be held guilty for the possession or sale of the contrabands. 21. Learned counsel for the appellants submitted that so far the appellant Vidyapati Yadav is concerned, he was juvenile on the date of occurrence under the Juvenile Justice (Care and Protection of Children) Act, 2000, and as provided under Sec.18 of the Act, he could not have been tried jointly with the other appellant and could not be sentenced to any term for imprisonment by the learned Special Judge. He further contended that as regards the appellant Janaki Devi, she was a wife and subordinate member of the family and the husband Sabhapati Yadav, who was Managing Member of the family, was alive and there is nothing on the record to show that she had any hand in keeping contrabands in the house or she was engaged in the sale of contrabands and, therefore, she cannot be held liable either for possession or for sale of the contrabands. In support of his submissions he has relied on the decision of this Bench in the case of Ganga Jali Devi V/s. State of Bihar, Cr.Appeal No. 203/2004 decided on 13th September, 2006 (reported in 2007(1) BBCJ 247 [: 2006(4) PLJR 407]. 22. Learned A.P.P., on the other hand, submitted that the appellants were in the house and as such, under Sec. 54 of the Act they would be presumed to have committed the offences under the Act, unless and until contrary is proved but they have adduced no evidence to prove their innocence. 23. It appears that in the lower court no defence was taken on behalf of the appellant Vidyapati Yadav that he was juvenile on the date of occurrence. In this Court during hearing, for the first time the plea was raised. Accordingly, a report was called for from the learned trial court in this connection. The trial court after enquiry has sent its report and according to it the appellant Vidyapati Yadav was aged 16-17 years on the date of occurrence. According to Juvenile Justice (Care and Protection of Children) Act, 2000 Juvenile is a person who has not completed 18th year of his age. No party has challenged the report of the learned Special Judge. We also do not find any infirmity in the report. 24. It is, therefore, evident that the appellant Vidyapati Yadav was juvenile on the date of occurrence, and as provided under Sec.18 of that Act, he should not have been legally tried alongwith the other appellant. In this connection the decision of the Supreme Court in the case of Gopi Nath Ghosh vs. State of West Bengal, AIR 1984 SC 237 , may also be referred to. In this connection the decision of the Supreme Court in the case of Gopi Nath Ghosh vs. State of West Bengal, AIR 1984 SC 237 , may also be referred to. In that case the Supreme Court while considering the provisions of West Bengal Children Act, which also contained similar provisions, held that where minor was tried alongwith the others for committing offence of murder and was convicted, the entire trial was without jurisdiction and vitiated. In view of that decision, in this case also when the appellant was juvenile, his trial by the learned Special Judge alongwith the other appellant was without jurisdiction and hence, the conviction and sentences passed against him cannot be sustained and are accordingly set aside. 25. The next question that arises is whether the case of this juvenile should be sent back to the competent authority for enquiry as provided under the Act. Learned counsel for the appellants relying on the decision of Orissa High Court in the case of Jyoti Shankar Tripathi vs. State, submitted that in a similar case, instead of remitting the matter to the lower court, in the interest of justice, the High Court had closed the matter and as such, the matter of this appellant should also be closed. 26. This case is of December, 2002 and it appears that the appellant has already been in custody for more than three years, though he could not be legally sentenced to any term of imprisonment. Therefore, in the special circumstances in the interest of justice, in the line of the above decision, the matter with regard to this appellant should be closed and thus stands closed. 27. So far the appellant Janaki Devi is concerned, though according to the F.I.R. The informant had received information that the co-accused Sabhapati Yadav engages this appellant in dealing in Heroin, there is absolutely no evidence that anybody had seen her either dealing in or dealing with the contrabands. Then though P.W.3 has stated that the appellant confessed that she was engaged in the business of Heroin alongwith the husband, this evidence is inadmissible. Therefore, on the above evidence it cannot be said that this appellant was engaged in the business of Heroin or Ganja. lant was subordinate Member. 28. There is also nothing to show that she had any control over the contrabands recovered. Therefore, on the above evidence it cannot be said that this appellant was engaged in the business of Heroin or Ganja. lant was subordinate Member. 28. There is also nothing to show that she had any control over the contrabands recovered. Therefore, she cannot be said to have been in possession of the contrabands because for possession there must be corpus as well as animus and this being so, no presumption under Sec. 54 of the Act can also be drawn against the appellant, la the case of Ganga Jali Devi (supra), in the absence of husband, the house was searched and contrabands recovered. But as the wife Ganga Jali Devi was present in the house she was also prosecuted and convicted by the trial court. This Court held that in the absence of evidence of any overt act committed by the wife in respect of contrabands, simply for the presence of the wife, who was subordinate Member of that house, she cannot be convicted under the Act. In view of that decision, in this case also in absence of any overt act on the part of this appellant in respect of the contrabands, she cannot be convicted under the Act. 29. The conviction and the sentence passed against the appellant Janaki Devi, hence, is set aside and she is acquitted. 30. In the result, this appeal is allowed. The learned Special Judge is directed to release the appellants in this case forthwith.