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2007 DIGILAW 634 (PAT)

Lakhindra Rai v. State Of Bihar

2007-03-28

GHANSHYAM PRASAD

body2007
Judgment Ghanshyam Prasad, J. 1. This appeal has been preferred against the judgment of conviction dated 15.9.2004 and its order of sentence dated 16.9.2004 passed by Fast Track Court No. 1, East Champaran, Motihari in Excise Case No. 19 of 1999. The sole appellant has been convicted under Sec.23 of N.D.P.S. Act and has been sentenced to undergo rigorous imprisonment for ten years with fine of rupees one lac and in default of payment of fine to undergo furtner imprisonment for one year R.I. 2. The prosecution story in brief is that on 28.3.1999 the informant/complainant Sri Rabindra Kumar, Inspector of Customs, Land Customs Station, Raxaul along-with his party was on routine checking on Raxaul Chhapwa road. At about 5.00 A.M. a bus bearing registration no. BR-1A-9050 came from the side of Raxaul and the same was checked by the team. A passenger of the bus was found in suspicious condition who disclosed his identity as Lakhindra Rai (appellant). The person of the appellant was searched in presence of two witnesses and was found to have concealed charas in his shirt and pant. The same was seized, which was ten packets, weighing about 6.5 Kg. The statement of the appellant was recorded under Sec.107 of the Customs Act. 196? who confessed that the Charas was purchased by him at Birganj (Nepal) for selling in Patna Market. In presence of seizure witnesses the sample of charas was packed and sealed in three envelopes and was sent to Government Opium and Alkaloid Works, Ghazipur (U P.) for chemical examination. The report Ext. 6 confirmed that the sample was charas. 3. The appellant was arrested and interrogated by the Superintendent of Customs also. He confessed his guilt before him. Ultimately after completion of all formalities, on 6.1.2000, the complaint was filed before the Sessions Judge, Motihari. 4. In course of trial, charge only under Sec.23 of N.D.RS. Act was framed against the appellant. Thereafter, prosecution examined eight witnesses including the complainant, Rabindra Kumar as P.W. 1 and the Superintendent of Customs Sri PK. Ghosh as P.W. 5. 5. The defence is total denial of recovery and plea of innocence. However, no witness has been examined on behalf of defence. 6. Mrs. Babita Kumari, iearned counsel appearing on behalf of the appellant as amicus curiae challenged the judgment both in law as well as on facts. Ghosh as P.W. 5. 5. The defence is total denial of recovery and plea of innocence. However, no witness has been examined on behalf of defence. 6. Mrs. Babita Kumari, iearned counsel appearing on behalf of the appellant as amicus curiae challenged the judgment both in law as well as on facts. It is urged that search and seizure of the person of the appellant was made without complying the mandatory provision of Sec. 50 of N.D.P.S. Act. There is no evidence on record to show that the appellant was asked to give option to be searched in presence of any gazetted officer as mandated in the provisions and hence search and seizure become illegal and no conviction can be based on such recovery. Other submission is non-examination of seizure list witnesses. It is submitted that though search was made in presence of two independent witnesses but none of them has been examined. No explanation, worth the name, has been given for non-examination. Non-examination gives rise to adverse inference to the prosecution story and also cuts the very root of the prosecution case. 7. So far the compliance of Sec. 50 of the N.D.PS. Act is concerned, there is catena of decisions of the Apex Court that the provisions are mandatory and its non-compliance vitiates the conviction based on such search and seizure. (1999 SC 1573 (Abdulbhai V/s. State of Gujarat) 1995 SC 244 (Ali Mustafa Abdul Rahman Moosa V/s. State of Kerala). The admitted fact is that the provision of Sec. 50 of N.D.RS. Act has not been complied before search of the person of the appellant. He was not asked by the Superintendent as to whether he wanted to be searched in presence of Gazetted Officer as required under the provision. However, in the present case Sec. 50 of the N.D.RS. Act is not attracted. It is a case of chance recovery, Charas in question was recovered from the possession of the appellant while the complainant P.W. 1 was on routine checking. It was no: based on any personal or confidential information. On this point law has been settled by the Apex Court in a decision reported in 1994 SC 1982 (State of Punjab V/s. Balbir Singh), in paragrapn 26 of the judgment it has been held as follows: - "26(1). It was no: based on any personal or confidential information. On this point law has been settled by the Apex Court in a decision reported in 1994 SC 1982 (State of Punjab V/s. Balbir Singh), in paragrapn 26 of the judgment it has been held as follows: - "26(1). If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in . the normal course of investigation into an offence or suspected offence as provided under the provisions of offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage Sec. 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance (of) recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act" 8. Thus, it is quite clear that noncompliance of Sec. 50 of the N.D.RS. Act in this particular case is not going to affect the conviction of the appellant. 9. The second point is non-examination of seizure list witnesses, Sec. 51 of the N.D.RS. Act provides that provisions of Code of Criminal Procedure shall apply to all searches and seizures made under the N.D.RS. Act. Sec.100(4) of the Code of Criminal Procedure provides that before search is made the officer who conducts search must call two or more independent local witnesses to witness the search of the body of the person who have to see that the search is made properly and to prevent the complainant from implanting any false evidence of recovery. In other words, it is a safeguard against any unfair dealing. 10. Ext. 3 is the seizure memo prepared by the complainant, Rabindra Kumar, which goes to show that it was prepared in presence of two witnesses, namely, Brajesh Kumar and Rajesh Kumar. Ext. 4 is the joint statement of Ranches. The address of both the witnesses have been given in the above document (Ext. 3). 11. 10. Ext. 3 is the seizure memo prepared by the complainant, Rabindra Kumar, which goes to show that it was prepared in presence of two witnesses, namely, Brajesh Kumar and Rajesh Kumar. Ext. 4 is the joint statement of Ranches. The address of both the witnesses have been given in the above document (Ext. 3). 11. There is no gainsaying that examination of seizure list witnesses is vital to prove the search and seizure. Mere attestation of seizure list by two persons is not sufficient. They are required to come in dock to prove the search and recovery. In this case none of the seizure list witnesses has been examined to support the seizure or search. In the complaint petition the names of seven witnesses have been mentioned but surprisingly the name of seizure list witnesses does not find place in the list of witness. Neither they have been examined in this case nor any explanation, worth the name, has been given by the prosecution for their non-examination. 12. Non-examination of seizure list witnesses undoubtedly throws serious doubts on the genuineness of the seizure and search which cuts the very root of the prosecution story. Therefore, only irrestibie conclusion would be that if they were examined they would not have supported the search and seizure. 13. All witnesses examined by the prosecution are of Customs Department. Not a single independent witness has come forward to support the prosecution story. Out of eight prosecution witnesses Pankaj Kumar (P.W. 2) has been tendered and P.W. 5, Bhola Singh has not uttered a single word in support of the recovery of illicit article. P.W. 6, Thakur Arun Singh, has also not supported the prosecution story. He has only proved the destruction certificate. 14. Thus, from the above discussion of oral evidence as well as tacts and circumstances of the case it is quite clear that the prosecution has miserably failed to prove the recovery as alleged beyond all reasonable doubts. The court below has not considered the impact of non-examination of seizure list witnesses without any explanation and has wrongly convicted the appellant, under Sec.23 of N.D.P.S. Act. 15. In the result, this appeal is allowed. The impugned order of conviction and sentence is hereby set aside. The appellant is directed to be set at liberty forthwith, if not required in any other case. 16. 15. In the result, this appeal is allowed. The impugned order of conviction and sentence is hereby set aside. The appellant is directed to be set at liberty forthwith, if not required in any other case. 16. Let a copy of this judgment be given to Mrs. Babita Kumari, learned counsel appearing as amicus curiae.