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2007 DIGILAW 438 (PAT)

Amar Singh v. State Of Bihar

2007-02-27

GHANSHYAM PRASAD

body2007
Judgment Ghanshyam Prasad, J. 1. This appeal has been preferred by the appellant against the judgment of conviction dated 24.4.2004 and order of sentence dated 26.4.2004 passed by 1st Additional Sessions Judge, Arrah, Bhojpur in N.D.P.S. Case No. 14 of 2001. The sole appellant has been convicted under Sec.20(B) of the N.D.P.S. Act and sentenced to undergo R.I. for ten years with fine of Rs. 1,00,000.00 in default to further undergo R.I. for two years. 2. On 17.10.2001 at 1.45 P.M., S.I. Shri Pankaj Kumar Das, Officer-in-Charge, Koilwar P.S. alongwith his team raided and searched the house of the appellant situated in village Manikpur. They recovered a brief case and a bag containing leaves and seeds smelling like ganja. The same was seized in presence of two independent witnesses. The weight of the seized article were taken which were 20 kgms. and 17 kgms. respectively. Accordingly, on the basis of self statement of Officer- in-charge, fardbeyan was lodged against the appellant and the case under Sections 16/ 20(B) of the N.D.P.S. Act was registered. After investigation, chargesheet was submitted against the appellant. 3. In course of the trial, the prosecution examined altogether seven witnesses including the informant, Pankaj Kumar Das as P.W.1. 4. Defence of the appellant is total denial of the offence. Nothing was recovered from his possession and he has been falsely implicated in this case due to village politics. However, no defence witness has been examined in support of the defence. 5. The learned counsel for the appellant challenged the judgment in question both in law as well on facts. However, the main ground for challenge is that there is no legal material or evidence on record to show that the seized article was ganja. No sample of seized article was sent to the chemical examiner. There is no any examination report on the record. It is further submitted that neither the seizure list nor the fardbeyan would go to show that the seized article was ganja. Only suspicion has been cast that the article was ganja. It is further submitted that the Court below has also erred in awarding sentence. On the date of the alleged occurrence. Principal Act of N.D.P.S. was in force in which the maximum sentence is only five years with maximum fine of Rs. Only suspicion has been cast that the article was ganja. It is further submitted that the Court below has also erred in awarding sentence. On the date of the alleged occurrence. Principal Act of N.D.P.S. was in force in which the maximum sentence is only five years with maximum fine of Rs. 50,000.00 for possession of ganja but the Court below has awarded sentence under Amended Act 9 of 2001 which came in force on 2nd October, 2002. 6. I find merit in both the points. It was duty of the prosecution to establish through cogent evidence that the seized article was ganja the surest evidence on this point is that chemical examination. However, the record would go to show that neither any report of the chemical analyst was obtained nor the sample was ever sent to the chemical analyst. On the other hand, the question put to the appellant in examination under Sec.313 Cr.P.C. would go to show that there was only suspicion that the recovered article was ganja as it smelt like that. 7. Finding of the learned lower Court in paragraph-10 of the judgment would also go to show that the appellant has been convicted only on the basis of suspicion that the recovered article was ganja. 8. Another glaring illegality is a seizure. The case of the accused is that the appellant was present in the house and the recovery was made in his presence. He was also arrested at the spot. Surprisingly, the seizure list (Ext.1) does not bear signature of the appellant. This fact has also been admitted by the informant (P.W.1) in cross-examination (paragraph-6). The copy of the seizure list was also not given to the appellant which is mandatory. Seizure list witnesses are P.W.1, Dharamvir Singh and P.W.3, Ram Bachan Singh. They have identified their signatures on seizure list (Ext.1) but denied that any article was seized from the house of the appellant before them. P.W.3 has been declared hostile but P.W.2 has not been declared hostile. 9. Thus, from the above discussions, it is quite clear that neither the seizure of the article has been legally proved nor it has been proved that the article was actually ganja. The Court below has convicted the appellant mere on suspicion, which is not sustainable in the eye of law. 10. 9. Thus, from the above discussions, it is quite clear that neither the seizure of the article has been legally proved nor it has been proved that the article was actually ganja. The Court below has convicted the appellant mere on suspicion, which is not sustainable in the eye of law. 10. It also appeare that the Court below has seriously erred in awarding sentence to the appellant. Offence was alleged to be committed on 17.10.2001. On that very day, Principal Act of NDPS was in force. According to Sec.20(b) (1), the maximum punishment is only five years with fine of Rs. 50,000/- but the Court below has awarded sentence on the basis of Amended Act which came in force on 2nd October, 2002. The appellant has already remained in jail custody since more than five years. 11. In the result, this appeal is allowed. The impugned judgment of conviction and sentence is hereby set aside. The appellant is directed to be released at once if not wanted in any other case.