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2007 DIGILAW 750 (PAT)

Kiran Devi v. State Of Bihar

2007-04-13

CHANDRA MOHAN PRASAD

body2007
Judgment Chandra Mohan Prasad, J. 1. This appeal is against the judgment dated 27th November 2002/ 29th November 2002 of Additional Sessions Judge, Motihari passed in Excise Case No. 36 of 1999 whereby the appellant has been convicted under Sec.20 (ii) (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo R.I. for 10 years and fine of Rupees one lack and in default of payment of fine, to undergo R.I. for two years. 2. Prosecution was initiated on the official complaint (Ext-4) as filed by P.W. 4 Jaydeep Kumar, Inspector, Customs Station, Raxaul, East Champaran. The prosecution case was that on 7th January 1999 at 2:30 P.M. while the complainant along with Customs Officials and Personnels was on preventive checking duty at the barrier of LOS, Raxaul, a Tanga carrying passengers coming from Birganj (Nepal) was checked. During the checking a packet wrapped with paper along with polythene bag was recovered. On being asked as to who was the owner of the said goods, a lady passenger (appellant Kiran Devi) accepted that both the things belonged to her. The box appeared to be heavier than its normal weight. She was asked about the contents of the box but she could not give any satisfactory reply. Two of the other passengers travelling on the Tanga were requested to act as Panches for search and seizure and they agreed. Thereafter, the box and the polythene bag along with appellant were brought to the Customs Office for thorough checking. After coming to the Office the said box was unwrapped and the polythene bag was searched before the Panches, Superintendent of Customs and a lady Inspector. After unwrapping the wooden box it appeared that its lower portion was attached with the higher portion with hinges. After breaking the hinges, a cavity was located and 8 big and 2 samll packets of Charas wrapped with plastic tapes were found in it, polythene bag was searched and miscellaneous foreign goods were recovered. The quantity of Charas was weighed and found to be 4 (four) kilograms and valued at Rs. 4,00,000/- (four lacs) and the miscellaneous goods of third country origin was valued at Rs. 183/- only The lady (appellant) was asked to give her voluntary statement which she gave and she admitted that she had brought Charas from Birganj (Nepal). The quantity of Charas was weighed and found to be 4 (four) kilograms and valued at Rs. 4,00,000/- (four lacs) and the miscellaneous goods of third country origin was valued at Rs. 183/- only The lady (appellant) was asked to give her voluntary statement which she gave and she admitted that she had brought Charas from Birganj (Nepal). She also stated that one Narayan Dai had handed over the box to her at Birganj for safe arrival at Raxaul where that person had to take delivery after paymerit of Rs. 500.00 (five hundred). In presence of the appellant, the Panches and the officers, three samples were taken from the said Charas for necessary chemical examination and necessary papers were completed. The appellant gave her voluntary statement (Ext- 1) and her interrogatory statement (Ext-4) was also recorded. The Charas as well as other goods recovered from the lady was also seized and a seizure-list (Ext-1) and her interrogatory statement (Ext-4) was also recorded. The Charas as well as other goods recovered from the lady was also seized and a seizure-list (Ext-3) was prepared. The appellant was arrested and produced before the Court and she was put on trial and on conclusion of trial she has been convicted and sentenced as above. 3. As many as seven witnesses were examined by the prosecution. P.W.4 Jagdeep Kumar, Inspector Customs is the complainant who is the Officer conducting the search and seizure. P.W.1 Sadanand Singh, is also a Customs Officer and he was a member of the checking party. P.W.2 Pradeep Kumar Ghosh, Superintendent, Customs was also a member of the checking party who took part in the search and the interrogation of the appellant. P.W.3 Indu Sahay is a lady Inspector, Customs who had conducted personal search of the appellant in the Office. P.VV.6 Narendra Mohan Das, Inspector, Customs was also a member of the search party. P.W. 7 Bhola Nath Singh, Constable had also taken part in the search of the appellant. P.W.5 Ram Lakhan Rai, Inspector, Customs has proved the report (Ext-5) with respect to seized Charas. 4. Firstly, I take up the evidence of the complainant P.W.4. P.VV.6 Narendra Mohan Das, Inspector, Customs was also a member of the search party. P.W. 7 Bhola Nath Singh, Constable had also taken part in the search of the appellant. P.W.5 Ram Lakhan Rai, Inspector, Customs has proved the report (Ext-5) with respect to seized Charas. 4. Firstly, I take up the evidence of the complainant P.W.4. He deposed that on 7th September 1999 at 2:30 P.M. he along with other customs Official had checked the Tanga coming from Nepal side at Raxaul Barrier and in course of checking one box wrapped in paper and polythene bag was found in possession of the appellant. On query, the appellant admitted that the box and Jhola belonged to her. During trial the complainant identified the appellant in dock and he further deposed that on being asked the appellant failed to give any satisfactory explanation about the contents of the box. He also deposed that he tore the paper wrapped on the box which appeared heavier than its normal weight and after tearing the paper he found that the box was in two portions, one normal and another fixed with hinges. He brought the appellant and the box to the Customs Office. The box was opened in the Office and then 8 big bags and 2 small bags were recovered from the box and the packets contained Charas which was weighed and it was found weighing 4 Kg. The complainant further deposed that seizure-list with respect to the articles was prepared and a Panchnama was prepared and the voluntary statement of the appellant was also recorded. He further deposed that the Panch witnesses Dinesh Kumar Harlalka and Krishna Prasad signed the appellants voluntary statement in the writings and signature of her which has been proved by the witness as Ext-1. The Panchnama prepared with regard to the recovery and seizure of Charas and other articles were signed by the Panches Dinesh Kumar Harlalka and Krishna Prasad and appellant Kiran Devi. The complaint petition itself was proved by the complainant as Ext- 4. In Para-12 of his evidence, he deposed that he took sample of seized article and sent it for chemical examination. During his examination-in-chief, the complainant did not say about having sealed the sample from the seized quantity of Charas. The complaint petition itself was proved by the complainant as Ext- 4. In Para-12 of his evidence, he deposed that he took sample of seized article and sent it for chemical examination. During his examination-in-chief, the complainant did not say about having sealed the sample from the seized quantity of Charas. However, in Para- 18 of his cross-examination he stated that the sample was sealed but he further stated that any specimen of the seal was not kept in his Office nor there was any entry in any register of his Office with regard to sending of the samples for chemical examination and he further deposed that the article seized from the appellant had been kept in the godown of the Department. Thus the complainant who is searching and seizing authority does not adduce any reliable evidence about sealing of the sample and maintenance of record in his Office about sending of the sample for chemical examination. He has not stated anything about sealing the recovered and seized Charas which, according to him, was kept in the godown of the Department. Thus, the evidence on the point of the sealing of the seized article is also lacking in the deposition of the complainant. 5. P.W.1 Sadanand Singh, Customs Inspector, a member of the checking party has deposed about the recovery and seizure of Charas and who also identified the appellant during trial. At Para-7 of his cross-examination he deposed that the place where the Tanga was seized situated about a distance of about 2 bamboos from his Office and that after seizure, the article had been carried from the place of checking to the Office by a constable whose name he does not recollect. At Para-10 of his cross-examination he deposed that the seizing Officer had taken sample from the recovered Charas and had weighed it but the seized Charas had not been packed. Thus, this witness can be said to mean that the seized Charas was not sealed. 6. At Para-10 of his cross-examination he deposed that the seizing Officer had taken sample from the recovered Charas and had weighed it but the seized Charas had not been packed. Thus, this witness can be said to mean that the seized Charas was not sealed. 6. P.W.2 Pradeep Kumar Ghosh, the Superintendent of Customs was also a member of the search party and he deposed on similar lines to that of the complainant that in course of search of the Tanga, the box containing Charas and polythene bag was recovered from the Tanga which was claimed by the appellant and that the appellant along with recovered article was brought to customs office, seizure list was prepared by the complainant and that Panchnama was also prepared in presence of two Ranches and that he (P.W.2) had also interrogated the appellant and that her interrogation report. (Ext-4) was also prepared. At Para-14 of his cross-examination, he deposed that the Officer seizing the recovered articles had deposited the seized article in the Godown on the next day. At Para-22 of his cross-examination he deposed that the seized box of Charas had been sealed in his presence on 7th September 1999 but the evidence of this witness on the point of sealing of the article becomes doubtful in view of the evidence of P.W.1 Sadanand Singh, Inspector. Customs who was also a member of the checking party and who has deposed at Para-10 of his deposition that the seizing Officer had taken sample from the seized Charas and had weighed it but the seized article had not been packed and the further deposition of the complainant (P.W.4), the seizing Officer himself who does not adduce evidence categorically on the point of sealing of the articles seized by him. 7. P.W.6 Narendra Mohan Das, Inspector, Customs, a member of the search party deposed on similar line about the search of the Tanga and the recovery of Charas and other articles and the claim of the appellant that it belonged to her. He also deposed that the two of the passengers on the Tanga had witnessed as Panches with regard to preparation of seizure-list and the Panchnama for the seizure. 8. He also deposed that the two of the passengers on the Tanga had witnessed as Panches with regard to preparation of seizure-list and the Panchnama for the seizure. 8. P.W.7 Bhola Nath Singh, Constable, another member of the Checking party gave a brief evidence that the Customs Officials had stopped a Tanga and after checking one lady with wooden box was brought down from the Tanga and she was brought to the Customs Office. 9. P.W.3 Indu Sahay, Lady Inspector, Customs gave a brief evidence stating that in the Customs Office, she conducted personal search of the appellant Kiran Devi and that nothing had been recovered from her body after personal search. 10. P.W.5 Ram Lakhan Rai, Inspector, Customs proved the destruction report (Ext-5) of the seized article. He deposed in his evidence that the destruction report (Ext-5) was typed by Steno Sachindra Prasad and its entry no.1 related to this case in which Kiran Devi is an accused with regard to 4 Kg. of Charas and that the destruction report contained the signatures of several Officers. Thus, the destruction report was proved by this witness as original destruction report in the typing of Steno Sachindra Prasad under the signature of several Officers. This destruction report has been marked as Ext-5 with objection of the defence. Thus, P.W.5 sought to prove the destruction report (Ext-5) as original one but on perusal of this report it appears that it is not the original destruction report but an attested photo copy of the same. The original destruction report has not been brought on the record nor any explanation has been put forth for not producing the original destruction report. 11. During trial, the prosecution filed the chemical examination report (Ext-6). On perusal of this report, it appears that it is not the original or carbon copy of the report but an attested true photo copy of the report. A careful perusal of the report shows that on some relevant portions the Photo is not even clear but it is blank and even the word Charas is not being read in the report. 12. A careful perusal of the report shows that on some relevant portions the Photo is not even clear but it is blank and even the word Charas is not being read in the report. 12. During hearing the learned counsel appearing as amicus curiae for the appellant submitted that according to the case of the prosecution itself two independent Panches who were amongst the passengers on the Tanga were called to act as Panches on the point of recovery and seizure and the preparation of Panchnama with regard to it and they are also said to have signed the seizure list and the Panchnama but they have not been examined by the prosecution and that only official witnesses who were members of the checking party and who were highly interested witnesses have been examined. Really the prosecution has not examined the two Panch witnesses, namely, Dinesh Kumar Harlalka and Krishna Kumar who were independent witnesses. No explanation was offered for their non-examination. Thus, nonexamination of these two witnesses goes against the prosecution. About the custody of the seized Charas it was argued that the Charas which is said to have been seized from the possession of the appellant was not sealed and that there is not sufficient evidence about its safe keeping. While dealing with the evidence of informant (P.W.4) the Customs Superintendent (P.W.2), Inspector and the witnesses as above, it has already been found thtt there is no sufficient evidence to prove beyond doubt that the seized Charas was properly sealed. The witnesses simply stated that the seized Charas was kept in the godown of the Department but any record of the Office was not produced showing any specific entry in any register about the receipt and safe keeping of the seized Charas in the godown nor any person who had the custody of the same or who was responsible for its safe keeping was examined by the prosecution to say that he had received the said Charas and he had kept it in the safe custody. The prosecution case is that the seized Charas was destroyed vide destruction report (Ext-5). It may be mentioned here that this destruction report was proved by P.W.5 who proved it as original one, but on perusal of the report, it appears that it is not the original report but it is an attested photo copy of the destruction report. The prosecution case is that the seized Charas was destroyed vide destruction report (Ext-5). It may be mentioned here that this destruction report was proved by P.W.5 who proved it as original one, but on perusal of the report, it appears that it is not the original report but it is an attested photo copy of the destruction report. This photo copy shows that as many as 17 Officers had signed the report. The prosecution did not produce the original destruction report and a photo copy of it was produced. In support of the destruction of the seized article, any of the 17 officers who had signed the destruction report has not been examined by the prosecution to say that the articles seized in the case had been destroyed in their presence. Thus, the simple copy of the destruction report cannot be said to be sufficient evidence to establish that any Charas, as said by the prosecution was destroyed. The evidence brought by the prosecution to prove this matter is insufficient. As to the chemical examination of the seized Charas, the prosecution tried to prove by the chemical examination report (Ext-6) that the seized article was Charas but it has already been found that the chemical examination report as brought by the prosecution is not original one but an attested photo copy of the same. 13. This learned A.P.P. submitted that the original copy was lost in transit so the attested photo copy was produced on the record. But the attested photo copy of Ext-5 as proved on the record has got its own defect in the way that the photo copy is not clear and it does not even contain legibly the word "Charas". The chemical examiner has also not been examined to say that the sample was received in good sealed condition and that on examination it was found to be Charas. Thus, the report about the article being Charas is also full of doubt. Lastly, the learned counsel who argued the case amicus curiae submitted that in this case, mandatory provision of Sec. 50 of the N.D.P.S. Act has not been followed and that the prosecution is bound to fail on this score only. Thus, the report about the article being Charas is also full of doubt. Lastly, the learned counsel who argued the case amicus curiae submitted that in this case, mandatory provision of Sec. 50 of the N.D.P.S. Act has not been followed and that the prosecution is bound to fail on this score only. The learned counsel argued that under Section 50 of the N.D.P.S. Act it is the bounden duty of the Officers conducting search and seizure to inform the accused that he had a right to be searched in presence of nearest gazetted Officer of any Department or a Magistrate and on accuseds willingness, he will be taken to such gazetted Officer or the Magistrate for the search. Learned counsel pointed out that in this case neither the complainant nor any member of the search party has adduced any evidence to show that the appellant was afforded any opportunity to be searched before the gazetted Officer of any Department or a Magistrate or she was made known of her this valuable right to be searched in presence of a gazetted Officer or a Magistrate. The perusal of the evidence of the prosecution witnesses does not show that the appellant was informed of her legal right as available to her under Sec. 50 of the N.D.P.S. Act. In support of her submission, learned counsel cited the decision in the case of State of Punjab vs. Balbir Singh (1994)3 SCC 299 . The Hon ble Supreme Court held in this case that Sec. 50 of the N.D.P.S. Act confers a valuable right on the person to be searched in presence of a gazetted Officer or a Magistrate, if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To af- ford such an opportunity to tho person to be searched he must be aware of his right and that can be done only by the authorised Officer informing him. Under the Act wide powers are conferred on the Officers and the deterrent sentences are also provide for the offences under the Act. To af- ford such an opportunity to tho person to be searched he must be aware of his right and that can be done only by the authorised Officer informing him. Under the Act wide powers are conferred on the Officers and the deterrent sentences are also provide for the offences under the Act. The legislature, while keeping in view the menace of drug trafficking deemed it fit to provide for corresponding safeguard to check the misuse of power, thus, conferred so that any harm to the innocent person is avoided and to minimise that allegation of planting or fabricating by the prosecution, Sec. 50 of the N.D.P.S. Act is enacted. When such is the importance of a right given to an accused person in general, the right by way of safeguard conferred under Sec. 50 of the N.D.P.S. Act in the context is ail the more important and valuable. Therefore, it is to be taken as imperative requirement on the part of the Officer intending to search. It must, therefore, be held that on prior information, the empowered Officer or the authorised Officer while acting u/s 41 (2) or 42 should comply with the provisions of Sec. 50 of the N.D.P.S. Act before the search of the person is made and such person should be informed that if he so requires he shall be produced before a gazetted Officer or a Magistrate, as provided therein. It is obligatory on the part of such Officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Magistrate or the gazetted Officer would amount to non-compliance of Section 50 which is mandatory and, thus, it would affect the prosecution case and vitiates the trial. After being so informed, whether such person opted for such a course or not could be a question of fact. The provisions of Sec. 50 are thus mandatory. Thus the noncompliance of the provisions of Sec. 50 will go to vitiate the trial. In the instant case, there is no evidence to show that the appellant was informed about her right in compliance of the provisions of Sec. 50 with regard to the search and seizure made from the appellant. The provisions of Sec. 50 are thus mandatory. Thus the noncompliance of the provisions of Sec. 50 will go to vitiate the trial. In the instant case, there is no evidence to show that the appellant was informed about her right in compliance of the provisions of Sec. 50 with regard to the search and seizure made from the appellant. The learned A.P.P. tried to improve the position by making submission that the Superintendent of Customs who was one of the members of the checking party was a gazetted officer, but this will not improve the position. The Superintendent of Customs (P.W.2), since he was a member of the checking party, he cannot be considered to be an independent Gazetted Officer within the meaning of Sec. 50 of the Act. 14. In the case of A.V. Dharan Singh and others vs. The State of Karnataka (1993 Cr.LJ. 94) the Karnataka High Court has taken a similar view and it has held that the person arresting the accused cannot be said to be an independent person so as to come within the description of nearest gazetted officer as envisaged in Sec. 42 of the Act and, therefore, there is non-compliance of Sec. 50 of the Act. 15. Thus I find that in this case there has been non-compliance of the provisions of Section 50 of the Act which has affected the credibility of the prosecution case and rather vitiated the trial. 16. The learned counsel appearing for the appellant also submitted that the appellant is in custody since 7th September 1999 and, thus, she has remained in custody for seven years and seven months. 17. Thus hearing and considering as above, I find that the prosecution has not been able to prove its case beyond the shadows of reasonable doubt and the appellant is entitled to benefit of doubt. 18. Thus, giving benefit of doubt to the appellant, this appeal is allowed and the conviction and sentence passed against the appellant is set aside and the appellant is ordered to be released from custody forthwith, if not wanted in any other case.