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2008 DIGILAW 473 (PAT)

Md. Shafique v. State of Bihar

2008-03-07

body2008
S.K. SHARMA, J.:–The appellants have preferred this appeal against the judgment of conviction and order of sentence dated 26.5.1993 passed by the Additional Sessions Judge, IIIrd, Begusarai in Sessions Trial No.258 of 1992 whereby the appellant alongwith another person namely, Ganesh Singh were found guilty for the offence punishable under section 20 of the N.D.P.S. Act (hereinafter referred to as Act) and were sentenced to undergo R.I. for five years. 2. On the basis of confidential information on 5.3.1992 a Mahindra Delivery Van bearing Registration Number BPA 4893 was intercepted by the Custom Superintendent Sri R.S. Ram at National Highway 31 Begusarai. In course of interception the van was chased up to three kilometers and it was forced to halt. In presence of independent witnesses the van was searched. On searc 20 pockets of Ganja wrapped in plastic concealed under firewood were found. After weighing it was found that 300 Kg. of Nepali Ganja was loaded on the delivery van totaling worth of rupees nine lacs. At the time of seizure the appellants were on the van. The appellant Md. Shafique was driving the vehicle whereas tile appellant Md. Nasimuddin described himself as Khalasi. Accused Ganesh Singh was the owner of the vehicle. No paper was produced by the appellants for carrying the Nepali Ganja. The appellants alongwith Ganesh Singh were charged under section 23 of the Act and they were tried by the Sessions Judge. After adjudication they were held guilty under section 20 of the Act. 3. It has been argued on behalf of the appellants that altogether three persons were faced trial and on identical charges out of them one Ganesh Singh has been acquitted vide judgment dated 26.5.1993 passed in Cr. Appeal No. 197 of 1993. The present appeal was also ordered to be heard with the aforesaid appeal vide order dated 11.8.1993 but this appeal was not listed. 4. In order to prove the case the prosecution has examined altogether 12 witnesses. Out of 12 witnesses; PW 4 Jamuna Prasad, PW 5 Shyam Nandan Mishra, PW 6 Upendra Prasad Mandal and PW 7 Shyam Bihari Singh have been tendered for cross-examination. PW 8 K.R.C. Pillai is the Custom Inspector and is the complainant of the case. PW 1 Ashok Kumar Singh, PW 2 R.R. Sinha and PW 3 is B.P. Sinha are Custom Inspectors and were the members of the raiding party. PW 8 K.R.C. Pillai is the Custom Inspector and is the complainant of the case. PW 1 Ashok Kumar Singh, PW 2 R.R. Sinha and PW 3 is B.P. Sinha are Custom Inspectors and were the members of the raiding party. PW 8 has supported the case as made out in the complaint and on this point the other custom officials have supported him. The seized Ganja was sent for its examination to the Forensic Science Laboratory and its report has been proved by the PW 12. 5. Learned counsel for the appellants submitted that in this case cognizance has been taken by the C.J.M., Begusarai which is illegal under section 36A of the Act. The cognizance can only be taken by the Special Court because no general Court can take cognizance under section 30D of the Act unless the Special Court under the Act takes cognizance then the entire proceeding is vitiated. 6. Name of Union of India as respondent has been deleted vide order dated 4.2.1996. Mr. Lala Kailash Bihari Prasad, APP has assisted the Court on behalf of the State of Bihar the opposite party no.1 here. 7. Learned counsel for the appellants further submits that three persons were tried together for the similar charge. One of them has been acquitted by this court on 25.11.1994 in Cr. Appeal No.197 of 1993. These appellants should have been acquitted, as this case has wrongly been left out by the office despite the specific order dated 11.8.1993 to list this case with the Cr. Appeal No.197 of 1993. Further submission is that the case of the appellants is similar to the case of the person who has been acquitted. 8. Learned APP submitted that the judgment of another criminal appeal cannot be relied upon in this case because the law has not been properly appreciated in that judgment. There is no need to follow the procedure under section 50 of the Act because in this case seizure was not from the person rather it was from the vehicle. 9. I am quoting the paragraphs 7 to 13 of the judgment passed in Cr. Appeal No.197 of 1993 which are as follows: "7. There is no need to follow the procedure under section 50 of the Act because in this case seizure was not from the person rather it was from the vehicle. 9. I am quoting the paragraphs 7 to 13 of the judgment passed in Cr. Appeal No.197 of 1993 which are as follows: "7. Learned counsel for the appellant raised two main contentions in this appeal.-(1) In this case the custom officials received information in the evening of 4th March, 1992 that a Mahindra delivery van bearing Number BPA 4893 had started from Siliguri for Patna and it was carrying contraband Ganja and thus it was obligatory for the Custom Authorities in Barauni office to take down this information in writing and to forward the same to their immediate Superior Officer/Officials and that (2) the Custom Officials did not inform these occupants of Mahindra delivery van who were the suspects in the eyes of the Custom Officials that delivery van would be searched and they might be arrested and it they want they could be taken to the nearest Magistrate or to the nearest Gazetted Officer as required under section 50 of the N.D.P.S. Act. 8. A perusal of the evidence of record before the trial Judge shows that information received was not taken down in writing and this was not sent to the immediate Superior Officer and that the Custom Officials failed to inform the accused-appellant and the van driver and khalasi that their van was to be searched and whether they would like that the nearest Magistrate or other nearest Gazetted Officer of any Department be called. 9. Learned counsel for the appellant also made reference to the decision in the case of State of Punjab Vs. Balbir Singh, reported in A.I.R. 1994 Supreme Court 1872, where it has been reiterated that both the above said steps on the part of the custom officials were mandatory and their non-observance vitiated the trial. 10. Learned counsel for the State urged that the Custom Superintendent Sri R.S. Rai was, a Gazetted Officer, leading the party and thus, the presence of Sri Rai in itself was compliance of the statutory provisions and there was no chance of cooking up a false charge. 11. Sri Rai might be a Gazetted Officer but he was a member of the raiding party. 11. Sri Rai might be a Gazetted Officer but he was a member of the raiding party. Both the above two safeguards are there in the interest of the accused and they are held mandatory by the highest court. 12. When information is received, it is mandatory to record it and to send a copy thereof to the immediate superior officer. This gives a guarantee that initiation of raid was started to the best of ability and correctly; and that Section 50 of the N.D.P.S. Act guarantees a right that the person to be searched get the opportunity of being searched before an independent person. 13. In absence of the safeguards, this trial is vitiated." 10. It appears that the charges against the appellants were similar to the person who has already been acquitted. In this case also the procedure has not been followed so it was the case of non-observance of Section 50 of the Act as well as the fact that the copy of information was not sent to the superior officials. In order to maintain consistency, it is desirable that the conviction and sentence passed against the appellants be set aside. Accordingly it is set aside, and this appeal is allowed. The appellants are discharged from the liabilities of their bail bonds.