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2007 DIGILAW 408 (PAT)

Munarik Rai v. State Of Bihar

2007-02-22

GHANSHYAM PRASAD

body2007
Judgment Ghanshyam Prasad, J. 1. This appeal has been preferred against the judgment of conviction and sentence dated 06.05.2004 passed by IVth Additional Sessions Judge, Bettiah (West Champaran) in Trial No. 27 of 2002. Both the appellants have been convicted u/ss 20 and 23 of the N.D.P.S. Act, 1985 and sentenced to undergo R.I. for ten years and also to pay a fine of Rs. 1,00,000/- (one lac) and in default, to undergo R.I. for one year each u/s 33 of the N.D.P.S. Act. No separate sentence u/s 20 of the N.D.P.S. Act has been passed. 2. Prosecution case in brief is that on 14.5.92, the complainant/informant, Umashankar Sharma, Superintendent of Custom, Bettiah Circle on getting confidential information, organised a raiding party and stationed it by the side of Majholia-Nanosati Road for search of vehicle suspected to carry Nepali Ganja. On the next morning, at about 4.00 a.m. they saw a motorcycle coming towards them. They signalled to stop the motorcycle upon which the motorcyclist stopped his motorcycle at a distance and fled away. In the meantime, one truck came. On signal, the driver stopped the truck and he also vanished in the darkness. On checking by the custom officials, two persons were found sitting on truck. They disclosed their names as Munarik Rai and Pyare Rai (appellants). From the hood of the truck, about 36 Kgs of Nepali Ganja was recovered. 3. Statement of the above two persons were recorded by the complainant/informant. They confessed that the Ganja was being transported from Nepal on the direction of one, Kali Babu of village, Deokulia. They also told that motorcyclist was escorting the truck bearing N. BR-C-9516. The sample of Ganja was sent to Chemical Analyst. After receipt of the report, prosecution report was submitted before the Sessions Judge-cum-Special Judge, Bettiah. 4. In course of the trial, prosecution examined 10 witnesses including the complainant as P.W. 10, Umashankar Sharma. 5. Defence is total denial of the occurrence as well as false implication. Further defence is that they were.not arrested from the truck in question, nor any Ganja was recovered from their possession. They were picked up from a line hotel where they were taking tea etc. The officers of Custom Deptt. demanded Rs. 1,00,000/- (one lac) from them and on refusal, they were implicated in the said case. Further defence is that they were.not arrested from the truck in question, nor any Ganja was recovered from their possession. They were picked up from a line hotel where they were taking tea etc. The officers of Custom Deptt. demanded Rs. 1,00,000/- (one lac) from them and on refusal, they were implicated in the said case. One witness, D.W. 1, Lagandeo Ram has also been examined in support of the defence. 6. The learned counsel for the appellants challenged the judgment in question both in law as well as on facts. It is submitted that absolutely, there is no evidence on the record to show that they were found sitting on truck nor they were found in possession of Ganja. There is consistent evidence on the record that both the appellants were picked up from line hotel and thereafter, they were implicated in the case by the custom officials. It is, further, submitted that the court below has not considered the oral evidence properly and has only convicted the appellants for possession of Ganja. 7. Out of 10 witnesses examined on behalf of the prosecution, P.Ws. 1, 2, 3, 6, 7, 8 and 9 were members of the raiding party. P.Ws. 4 and 5 are said to be witnesses of seizure. P.W. 10 is the complainant/informant who was then Superintendent of Customs, Bettiah Circle. 8. On careful scrutiny of the evidence of prosecution witnesses, it appears that there is truth in the submission of the learned counsel for the appellants. P.W. 1, Ram Bali Ram in his examination-in-chief has clearly stated that both the appellants were brought to the custom officials from Raj Line Hotel. In paragraph 2 of cross-examination, he has further stated that both the appellants were arrested while they were taking tea in the line hotel. 9. P.W. 2, Mahesh Prasad Singh was another member of the raiding party. He has also stated in his examination-in-chief that both the appellants were arrested from line hotel and, thereafter, brought in the office of the customs. In paragraph 2 of cross-examination, he has admitted that the truck in question, was standing at a distance from the line hotel. He has, further, stated that first of all, the Ganja was recovered and, thereafter, the appellants were arrested. 10. In paragraph 2 of cross-examination, he has admitted that the truck in question, was standing at a distance from the line hotel. He has, further, stated that first of all, the Ganja was recovered and, thereafter, the appellants were arrested. 10. Similarly P.W. 3, Dinanath Prasad, in paragraph 2 of his cross-examination, P.W. 6, Yadunath Prasad in paragraph 3 of cross-examination, P.W. 7 Kali Prasad Raut, in paragraph 2 of the examination-in-chief, P.W. 8, Chandrika Sah in his chief as well as in paragraph 5 of his cross-examination have admitted that both the appellants were arrested from the line hotel and no Ganja was recovered from their possession. Surprisingly, none of the prosecution witnesses had been declared hostile by the prosecution. 11. P.Ws. 4 & 5 are seizure list witnesses. They have admitted their signature but denied that Ganja in question, was recovered in their presence. They have been declared hostile. 12. P.W. 10, Umashankar Sharma is the sole witness who has supported the prosecution story but his evidence is not corrobo- rated by any of the witnesses of the raiding party. Other material witnesses as discussed above have denied that the appellants were arrested from the truck or any Ganja was recovered from their possession. 13. Thus, from the above discussions, it is quite clear that the prosecution has miserably failed to prove that the Ganja in question was recovered from possession of the appellants. 14. In view of above, Sec. 54 of N.D.P.S. Act does not come to play its role for presumption of guilt against the appellants. The court below has wrongly, against the weight of the evidence convicted the appellants which is not sustainable in the eye of law. 15. In the result, this appeal is allowed. The judgment of conviction and sentence in question is hereby set aside. Both the appellants are directed to be released at once, if not wanted in any other case.