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2007 DIGILAW 616 (PAT)

Nitya Nand Duey v. State Of Bihar

2007-03-26

CHANDRA MOHAN PRASAD

body2007
Judgment C.M.Prasad, J. 1. On repeated calls, nobody appears on behalf of the appellant to argue this appeal. Learned counsel on record who filed Vakalatnama for the appellant are also not present. 2. Mrs. Asha Sinha, Advocate who is present in court offers to argue this appeal amicus curiae on behalf of the appellant. She is permitted to do so. 3. Heard Mrs. Asha Sinha (amicus curiae) on behalf of appellant and Mr. Satya Narayan Prasad, learned A.P.P. 4. This appeal is against the judgment dated 30.1.2003/30.1.2003 of the Special Judge, Buxar passed in N.D.P.S. Case No.1 of 2002 arising out of Buxar (Town) P.S. Case No. 63 of 2002 whereby the-appellant has been convicted under Sec.20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter, in short, referred to as the N.D.P.S. Act) and sentenced to R.I. for 3 years and a fihe of Rs. 5,000.00 and in default of payment of fine to undergo R.I. for six months. 5. The prosecution commenced with the F.I.R. of the informant Anant Arya, S.I. of Police Officer In-charge of Buxar (Mufassil) Police Station who stated that on 4th March 2002 at 1:30 P.M. on getting confidential information that one person was going towards station with stolen properties, he entered S.D. Entry No. 75 and thereafter or ganised a raiding party with armed/Police personnels and proceeded on Jeep for veriification of the information and that at 1:45 P.M., while he was adjacent to the town hall, he saw one person going with a brief case. He asked him to stop whereupon that person started fleeing away but. he was chased and caught by the Police Party and on interrogation, he disclosed that he was carrying Ganja in the brief case and he disclosed his name as Nityanand Dubey, the appellant. The informant further stated that he (the appellant) had a right to be searched before a Magistrate and he was also asked whether he was willing for such search, whereupon the appellant did not express his willingness for being searched before a Magistrate saying that he had faith on Police. Then it is said that the brief case was searched and Ganja was weighed with the weighing scale of vegetable vender nearby and it was found 5 Kg. in weight. Then it is said that the brief case was searched and Ganja was weighed with the weighing scale of vegetable vender nearby and it was found 5 Kg. in weight. A seizure-list was prepared and a copy of the seizure list was also furnished to the appellant who put his signature on it in acknowledgement of having received the same. The informant further says that the place where the recovery was made fell within the jurisdiction of Buxar town Police Station, hence, he handed over his written report to the Officer In-charge, Buxar Town Police Station who lodged Buxar (Town) P.S. Case No. 63 of 2002. The recovered article was also handed over to the Officer ln charge of Buxar (Town) Police Station. It is also stated that the recovered article was seized and sample was also taken which was sent to Forensic Science Laboratory. Patna for chemcial examination. The chemical examination report was received which showed that the sample sent was Ganja containing Tetra-hydro-cannanol (TMT). 6. As many as 5 witnesses were examined by the prosecution, P.W.1 Babu Singh, Home-guard No. 9198 was a member of the raiding party, P.W.2 Anant Arya, S.I. of Police is the informant of the case. P.W.3 Kailash Yadav is the driver of Buxar (Mufassil) Police Station who was driving the Jeep. P.W.4 Kiran Kumari is the scientific Assistant of F.S.L., Patna and P.W.5 A. K. Jha is the I.O. of the case. 7. The informant (P.W.2) supported the case of the prosecution in his evidence. He deposed that on receiving confidential information, he formed a raiding party and proceeded on Jeep and while he was near Buxar Town Hall he saw the appellant going with a brief case in suspicious condition and that on being asked he tried to escape away but he was chased, apprehenced and searched as a result of which Ganja was recovered from his brief case. The Ganja was weighed and it was found 5 Kg. in weight. He also deposed that the two samples of Ganja were taken and were sent also. The recovered Ganja was also seized and a seizure list was also prepared in presence of witnesses and a copy of the seizure list was also handed over to the appellant who put his signature on the seizure-list in aknowledgement of having received a copy of it. The recovered Ganja was also seized and a seizure list was also prepared in presence of witnesses and a copy of the seizure list was also handed over to the appellant who put his signature on the seizure-list in aknowledgement of having received a copy of it. He further deposed that the place of recovery fell within the jurisdiction of Buxar Police Station, hence, he gave his written report on the basis of which the F.I.R. was registered at Buxar Town Police Station. There is nothing in his evidence to discredit his testimony. 8. P.W.5 A.K. Jha is the I.O. of the case. He has deposed that he was entrusted with the investigation of the case. He recorded the statement of the informant Anant Arya as well as the Home-guard Babu Singh, Mahendra Singh, Pawan Singh, Kashi Nath Singh, Kailash Yadav and witnesses Gyani Kumar and Shivdhar Nonia. He has stated that about the place of recovery. He also deposed that on obtaining permission from the Special Judge, Buxar he had sent the sample of the recovered article to F.S.L., Patna and that on completion of the investigation, has submitted charge-sheet. He has also deposed that in his statement before him, said Baban Singh (P.W.1) had supported the recovery of Ganja from the possession of the appellant and that the Ganja was found 5 Kg. in weight. 9. Ext-1 is the seizure-list in the pen of the informant Anant Arya. Ext-2 is the endorsement on the seizure-list by appellant Nityanand Dubey who has written that he received a copy of it and he signed it. Ext-3 is the F.I.R. Ext-4 is Report of the F.S.L., Patna. Ext-5 is the forwarding memo of F.S.L., Patna Ext-6 is the carbon copy of the forwarding memo with regard to the forwarding of sample to the F.S.L., Patna for chemical examination. The seized Ganja was produced before the trial court and it was marked material Ext-1. 10. P.W.1 Baban Singh who is a constable turned hostile and he did not support the prosecution case. On his attention being drawn towards his previous statement, he denied to have made any such statement. But the I.O. (P.W.5) has proved the police statement as given by this witness before him that the recovery of Ganja was made from the appellant and it weighed 5 Kg. 11. On his attention being drawn towards his previous statement, he denied to have made any such statement. But the I.O. (P.W.5) has proved the police statement as given by this witness before him that the recovery of Ganja was made from the appellant and it weighed 5 Kg. 11. P.W.5 Kailash Yadav, driver of the Jeep was tendered by the prosecution and nothing was asked from him in his cross- examination. 12. P.W.4 Kiran Kumari deposed that the sample sent to the F.S.L. was examined after opening the seal and after examination it was found to be Ganja containing Tetrahydro-cannalinal (TMT). She deposed that the examination was done by a team of chemical examiners. She proved the Chemical examination report as Ext-4. During hearing, the learned amicus curiae argued that in this case P.W.1 who was a member of the raiding party has gone hostile. The learned A.P.P. argued that itappears from the record that the appellant was a constable and that therefore under influerce P.W.1 did not prefer to support the case. However, the I.O. has proved that in his statement before him this witness had supported the case of the prosecution. Learned A.P.P. also argued that the informant who was Officer In-charge of Buxar Town Police Station has fully supported the case and on the evidence of even a solitary witness if believable conviction can be awarded. 13. Thus, considering the material and evidence on the record, I find that the prosecution has proved its case beyond shadow of doubt. Under the circumstances. I find no reason to interfere with the order of conviction and sentence. Therefore, this appeal stands dismissed.