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2011 DIGILAW 1463 (PAT)

Sanjay Paswan v. State Of Bihar

2011-07-18

GOPAL PRASAD

body2011
JUDGEMENT Gopal Prasad, J. 1. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted under Section 21 of the N.D.P.S. Act, 1985 for the alleged possession of five grams heroin and sentenced to undergo rigorous imprisonment for ten years as well as fine of Rs.20,000/- and in case of default to undergo rigorous imprisonment for three years. 3. The prosecution case as alleged is that on confidential information, accused Sanjay Paswan is selling heroin, the informant along with the raiding party proceeded and found a man running away after arrival of the police in Lungi and shirt. He was chased and caught hold and disclosed his name as Sanjay Paswan and on search of his body in the presence of Laxman Prasad and Raju Prasad Kesri, the police recovered three doses of heroin from upper pocket of the shirt and seven doses from the waist of the accused persons and on being weighed it was found five grams. The articles were seized, seizure list was prepared. On the written report FIR was drawn and after investigation charge-sheet submitted, cognizance taken and subsequently charge framed and trial proceeded. During the trial four witnesses were examined as P.W. 1 are Ramakant Uppadhaya, P.W. 2 Raju Prasad, P.W. 3 Mohima Nand Pandey and P.W. 4 Shiv Janam Singh. The witnesses have supported the prosecution case about the raid, search and seizure of heroin from possession of Sanjay Paswan. 4. P.W. 1, the informant has stated in his evidence that before proceeding for a search from the body of Sanjay Paswan he has informed him whether he wants that the search be made before the Magistrate. However, in the cross-examination of P.W. 1 the attention has been drawn of this witness whether he has stated the fact before the I.O. or in his fardbeyan which he answers in positive. However, the I.O. P.W. 4 in his evidence in para 12 has stated that the informant neither in his fardbeyan nor in his further statement has stated this fact that he asked the accused Sanjay Paswan whether he wants his personal search 3 be made before the Magistrate and hence the evidence of P.W. 1 suffers from contradiction though it may be an omission but this omission amounts to contradiction and hence there is violation of Section 50 of the N.D.P.S. Act. 5. 5. However, from the evidence of P.Ws. 1 and 3, the heroin was seized and seizure list was prepared. However, there is no evidence either in the evidence of P.W. 1 the informant and P.W. 3 the Investigating Officer whether the seized articles were ever sealed or sampled and there is no evidence that the sample taken from each packets were taken in one sample or whether sent separately from each packets and hence non mentioning of this fact that the seized articles were sealed at the place of occurrence or the police station. However, there is mention that the seized articles were handed over to the Officer-In-Charge and there is no mention where those articles were kept and whether kept under a seal. 6. P.W. 4 in his evidence has stated that he received the seized articles from the Officer-In-Charge and put it in envelop and submitted in Malkhana. However, there is no mention whether the said articles were sealed. However, there is no evidence that who sent the sample to the F.S.L though there is a report of the F.S.L. 7. However, having regard to the fact that since there is no evidence that the seized articles were ever sealed and the seized articles were sampled or sent to the F.S.L in sealed cover. Hence there is violation of Section 55 of the N.D.P.S. Act which mandatorily requires that the articles seized must be sealed and kept before the Officer-In- Charge of the police station. However, the articles seized were kept in Malkhana without being sealed is violation of Section 55 of the N.D.P.S. Act. Hence there is violation of Section 55 of the N.D.P.S. Act which mandatorily requires that the articles seized must be sealed and kept before the Officer-In- Charge of the police station. However, the articles seized were kept in Malkhana without being sealed is violation of Section 55 of the N.D.P.S. Act. There is no evidence whether the seized articles were ever sealed or how the sample was taken from seized packets and whether sample sent in sealed cover and hence the report of the F.S.L when there is no evidence that the seized articles were sealed and sampled and the sealed sampled was sent to the F.S.L and hence having regard to the fact and circumstance since the articles seized nor sampled nor the sealed sampled was sent and hence the report of the F.S.L. cannot be relied upon and hence the order of conviction and sentence recorded by the learned lower court on the basis of the F.S.L. report is neither reliable nor worthy of confidence and hence the order of conviction and sentence recorded by the learned lower court is not sustainable and the appeal is allowed.