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2008 DIGILAW 300 (PAT)

Sanjay Singh @ Mithlesh Singh v. Union Of India

2008-02-12

SHYAM KISHORE SHARMA

body2008
Judgment SHYAM KISHORE SHARMA, J. 1. The sole appellant has preferred this appeal against the judgment of conviction and order of sentence dated 22.1.1993 and 25.1.1993 respectively passed in Sessions Trial No. 653 of 1992 by the 5th Additional Sessions Judge, Motihari whereby the appellant was found guilty under sec. 23 of the N.D.P.S. Act and has been sentenced to undergo R.I. for 10 years and fine of rupees one lac and in default of payment of fine to further undergo R.I. for two years. Prosecution story (Ext-2) relates to an occurance dated 31.3.1992 what the custom Inspector (PW 12) along with custom officials was checking at Bairiya and in course of checking a bus was stopped which was going towards Muzaffarpur. A passenger with plastic bag was found lying on the bus. On inquiry about the plastic bag he claimed that he it was his own and disclosed his he claimed that he it was his own and disclosed his name. That persons was perplexed at the sight of the custom officials. After observing paraphernalia search of the bag was made and it was found that it was carrying photo frame of Goddess Durga, on removing the photo 11 pockets of Nepali Charas measuring 5 K Jg. Was found there. Initially the accused denied his knowledge about the article which was seized but later on confessed. The prosecution report dated 26.6.1992 was considered and cognizance was taken and the case was committed. After the charge was framed the accused person pleaded innocence and preferred to be tried. 2. In order to prove the case the prosecution has examined 12 witnesses. They were PW 1 Parmatma Singh a constable of customs, PW 2 A.K. Gupta Custom Superintendent, PW 3 Nagdansh Singh Custom Superintendent, PW 4 Bishundev Singh a constable of customs, PW 5 Kashinath and PW 6 Birendra Prasad Sah both constable of customs and are the seizure list witnesses, PW 7 Indu Bhushgan Prasad a formal witness, PW 8 Shivballi Gaurh constable of customs, PW 9 Sahdev Bhaitha constable of customs, PW 10 Sonalal Sah, PW 11 Rameshwar Lal Das and PW 12 Prashant Kumar Sinha Inspector of Customs. PW 3 and 9 were tendered. PW 6 has not supported the case and he was declared hostile. PW 12 is the informant and Investigating Officer. PWs 1, 3, 6, 8 and 9 were constables of Customs. PW 3 and 9 were tendered. PW 6 has not supported the case and he was declared hostile. PW 12 is the informant and Investigating Officer. PWs 1, 3, 6, 8 and 9 were constables of Customs. PW 12 has stated that on 31.3.1992 he was posted as Inspector of Customs at Motihari and on that date a raiding party was constituted and 9-10 persons were checking at Bairiya. In course of checking a bus was spotted which was checked. As soon as the bus stopped then some constables went inside the bus. One of the constables called the informant inside the bus then the informant saw a person sitting on the bus with a plastic bag there, the informant inquired from the person about the ownership of the bag, initially that person who was the accused denied his ownership but later on he confessed that it was his own. The informant asked the person to open the bag which was opened. It was a photo frame containing the photo of Goddess Durga (material Ext-1) . Altogether 10 photo frames were there. After removing the photo frame it was found that 11 pockets were concealed inside the photo frame. The informant suspected that it was Charas. It was seized and Panchnama was prepared which was signed by the appellant and witnesses which was the Ext-3. A sample of the seized article was sent each to Calcutta and Patna Forensic Science Laboratories for its examination. In course of cross examination this witness has supported the fact that in course of checking it was spotted that Charas was being carried. 3. Though some of the witnesses have not supported the prosecution case because they were tendered or become hostile but almost of the witnesses have stated that on the date and time of occurrence at bus was stopped at Bairiya and a seizure was made from a person carrying photo frame containing 11 Kg. of Charas from spotted bus. The specific case of the prosecution is that the seized article was sent for chemical examination both at Calcutta and Patna Forensic Science Laboratories. Both reports of the Forensic Science Laboratories are available on the record. 4. of Charas from spotted bus. The specific case of the prosecution is that the seized article was sent for chemical examination both at Calcutta and Patna Forensic Science Laboratories. Both reports of the Forensic Science Laboratories are available on the record. 4. It has been argued on behalf of the appellant that the seized article were neither Charas nor Bhang and the report of the Forensic Science Laboratories speaks that the prosecution was adamant to implicate the appellant in false case. Both the reports are contradictory to each other. Report of Forensic Science Laboratory of Calcutta says that it was Charas but the same article which was sent to Patna where after examination it was found to be Bhang not Charas. It has been submitted in view of the contradictory stands of the Laboratories it is clear that the prosecution has tailed to prove its charge beyond all reasonable doubts. 5. Learned counsel for the Union of India submits that the patna Forensic Science Laboratories has received unsealed pocket of seized article and it is clear that the appellant might have made some interpolation and the original seized article might have not been sent to Patna Laboratories. Report of Laboratory of Calcutta is clear that the seized article was Charas. After noticing of entire evidences on the record it is clear that two types of reports are available with regard to seized articles. One says it is Charas and another says it is not the charas. These are contradictory reports. It is for the prosecution to prove the case beyond all reasonable doubt. On failure of the prosecution benefit always goes against its case and in favour of the accused. Hence the accused is entitled to get the benefit of lapses of the prosecution. In view of the contradictory reports of the Forensic Science Laboratories I hold that reports are quite contradictory to each other. The prosecution case is that the seized articles was Charas which has not been proved beyond shadow of all reasonable doubts. Accordingly, the prosecution has failed to prove its case beyond all reasonable doubt. In the result the impugned judgment of conviction and sentence is set aside and this appeal is allowed. The appellant is discharged from the liabilities of his bail bonds.