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2011 DIGILAW 827 (PAT)

Rajkishore Prasad Yadav v. State Of Bihar

2011-04-27

DHARNIDHAR JHA

body2011
JUDGEMENT Dharnidhar Jha, J. 1. Present appeal is directed against the judgment dated 26.8.2006 passed by the Additional Sessions Judge-I-cum- Special Judge, Sitamarhi in Tr. No. 43 of 2006 (G.R. No. 40 of 2004) by which the appellant was found guilty of committing offence under sections 20(b)(ii)(c ) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act). After hearing the appellant on sentence on the same day, the learned trial judge was directing the appellant to suffer rigorous imprisonment for ten years as also to pay a fine of rupees one lac, in default of payment of which the appellant was to suffer rigorous imprisonment for a further period of one year. 2. The prosecution case is based on the self-statement of P.W. 4, namely, S.I. Prakash Kumar Sharan of Piprahi Police station. It is stated that on 18.2.2004 at about 7 A.M. he received a secret information that someone was carrying Ganja on an old motorcycle and was coming towards Piprahi from Belwa Ghat. Accordingly, the informant along with Naseem Akhtar (P.W.2), chowkidar no.7/16 Ram Pukar Paswan (P.W. 3), started for Belwa Ghat by police jeep. As soon as he reached near Amba Kothi, he saw a motorcycle carrying two persons coming from Belwa Ghat side. Seeing the police jeep, the occupants of the motorcycle abandoned their Rajdoot motorcycle and started running away. The person who was driving the motorcycle made good his escape whereas the other who was the pillion rider, was captured and it was this appellant Raj Kishore Prasad Yadav. It is alleged that on search of the motorcycle, it was found carrying nine packets in the dickey and in the space under the seat and each packet was containing Ganja and total weight of the contraband was 39 Kgs. The contraband article along with the motorcycle was seized in presence of the witnesses and the arrested accused was brought to the police station where Ext. 2, the self- report was lodged, upon which FIR of the case (Ext.4) was drawn up. 3. The case was investigated into by P.W. 7 SI Shyam Sunder Singh, who drew the sample of the seized contraband and sent it to Forensic Science Laboratory, Muzaffarpur for chemical analysis and finding the material sufficient, sent up the solitary accused for trial, which ultimately ended in the impugned judgment. 4. 3. The case was investigated into by P.W. 7 SI Shyam Sunder Singh, who drew the sample of the seized contraband and sent it to Forensic Science Laboratory, Muzaffarpur for chemical analysis and finding the material sufficient, sent up the solitary accused for trial, which ultimately ended in the impugned judgment. 4. The defence of the appellant was that he had wrongly been implicated by being arrested from a place where he was drinking water and was remanded subsequently on false accusation of being found in possession of the contraband article. 5. The prosecution examined seven witnesses in support of the charge whereas the solitary appellant examined a witness Birendra kumar in support of his defence. 6. P.W. 1 Ram Ishwar Thakur was the driver of the police jeep by which P.W. 4 Prakash Kumar Saran had started from the police station after receipt of the secret information for nabbing the culprits along with P.Ws 2 and 3, the two chowkidars. P.W. 4 was the informant himself and P.Ws. 5 and 6 were witnesses to search and seizure. I have already indicated that P.W. 7 was the I.O. of the case. 7. Arguing the appeal, Shri Aaruni Singh was contending that there was a complete non-observance of the provision of sections 55 and 57 of the Act. As regards the compliance to the provisions of sections 42 or 50 of the Act, it was also completely lacking. There was a complete lack of evidence as to whether the seized ganja was placed in whose custody and whether it was secured by properly being sealed and again there was a complete lack of evidence that the sample was drawn out of the seized article in compliance with the settled principles of law, specially, that of section 55 of the Act. It was contended that P.W. 7 has stated that he dispatched the sampled article to FSL on 4.4.2004 but the document (Ext.6) indicates that it had been dispatched from the police station on 15.4.2004, which was received in the FSL on 1.6.2004, i.e., after one month and 16 days and lastly, the analysis was done and report was prepared on 10.1.2005. The contention in the above light, was that the dispatch was belated, as belated was the receipt of the sampled articles and the analysis had been carried out after about eleven months of having received the sampled articles in the FSL. It was contended that this court in a couple of decisions reported in 2010(2) PLJR 228 and 2011(1) PLJR 195 has held that the lack of evidence on storage of the seized article, securing it by properly sealing the seized substance and thereafter taking the sampled articles in accordance with the rules in that behalf, could be fatal to the prosecution charge and there could be serious doubt created on the above account that the same articles had been sampled and chemically analyzed by the FSL and thus, there could be a doubt that the articles which are claimed to be seized from the possession of the accused were contraband substance. The contention further was that the belated sampling and analysis have been held to be creating a doubt about the genuineness of the seized articles. 8. As against the above, Shri S.N. Prasad, learned Additional Public Prosecutor was submitting that the evidence is sufficiently indicating that the appellant was also one of the occupants of the motorcycle, who was found carrying Ganja in its dickey and in the space under its seat as also in a packet and the recovery of the same could be said to be from the conscious possession of the appellant. It was contended that the evidence indicates that the appellant started running away and he was chased and captured. The conduct of running away indicated the guilty conscience of the appellant and his guilty mind. It was contended that the evidence was consistent as regards the weight of the seized material. It was contended further that there might be some defect in evidence of the prosecution as regards the storage of the seized contraband article and its sampling and there does appear some lapse on the part of dispatch and analysis of the report and, as such, this court could examine that aspect of the matter in its own way. 9. One of the witnesses to seizure, namely, P.W. 5 has testified to the recovery of article and seizure of the same by P.W. 7. 9. One of the witnesses to seizure, namely, P.W. 5 has testified to the recovery of article and seizure of the same by P.W. 7. However, P.W. 6 Ram Sahaya Rai has not stated that anything was recovered or seized in his presence by the police, but, has admitted the seizure memo contained his signature. Other witnesses, like, Nasim Akhtar (P.W.2), Ram Pukar Paswan (P.W. 3) and Prakash Kumar Saran (P.W. 4), the informant of the case, have supported the initial prosecution version contained in the self-statement of P.W. 4 that the appellant was chased, caught and on search of the motorcycle, recovery of 39 Kgs ganja packed in nine packets was made. However, learned counsel for the appellant was pointing out some of the discrepancies in the evidence of the witnesses. Evidence of P.W. 1 in paragraph 10 was referred in that context and it was contended that recovery and seizure of ganja was made, cannot be accepted as he has stated that the seizurelist was not prepared in his presence as he kept sitting at the driving seat. It was contended that this evidence completely rules out the witness having seen the search of the vehicle made and recovery of the ganja where from it was seized. Same was the contention in respect of the evidence of P.W. 2 who in spite of having said in paragraph 3 as to from where the ganja was recovered was not stating that it was sealed or was taken to the police station. Evidence of P.W. 3 in paragraph 9 was also referred to in the above context in which the witness has stated that how many packets of ganja was recovered from which place he was not aware of that. Likewise, the informant was also faltering while deposing in paragraph 13 that he cannot say as to what quantity of ganja was recovered from where. This is one aspect of the matter, which was very strenuously argued by learned counsel for the appellant. 10. The court finds the discrepancies there, but in spite of that it could not over rule the chase and arrest of the appellant but when it was taken to the other part of the prosecution evidence, it started entertaining some doubt as regards the claim of the prosecution that the seized article could be ganja. 11. 10. The court finds the discrepancies there, but in spite of that it could not over rule the chase and arrest of the appellant but when it was taken to the other part of the prosecution evidence, it started entertaining some doubt as regards the claim of the prosecution that the seized article could be ganja. 11. None of the six witnesses including the Investigating Officer has stated as to how and where the seized ganja had been stored or in whose custody it was put into. There is specific provision contained in section 52A of the Act, which requires that the seized narcotic substance has to be forwarded to the Officer Incharge of the nearest police station who is required to prepare an inventory of such narcotic drug or psychotropic substance containing such details referring to their description, quality, quantity, mode of packeting, marks, number or such other identifying particulars of such narcotic drug or psychotropic substance or the packet in which they are packed besides other details, which are indicated by that particular provision. Not only that, an application has to be made to a magistrate with a request that he should certify the correctness of the inventory so prepared or allow to draw the representative sample of such drug or substance in presence of such Magistrate, who was certifying the correctness of sample so drawn. None of the witnesses, especially, P.W. 4 or P.W. 7 who were the informant and the I.O. of the case, have given any evidence as to after being seized who were the authorities in whose custody the seized substance was transferred and whether the requirement of law as per section 52A of the Act was fulfilled. Likewise, the evidence was completely lacking as regards compliance of the provision of section 55 of the Act as there was no evidence given either by P.W. 4 or P.W. 7 that the recovered article was put into charge of the officer incharge of the police station or in his safe custody pending the orders of the Magistrate and all articles were really delivered to him. There is absolutely no evidence that the seized article was properly secured by being sealed by the Officer Incharge as also the officer who had seized the articles and there was no further evidence that both the Officers-in-charge of the police station and P.W. 4 who had seized the articles, went to the place of storage of the article to draw up sample so as to packeting them by putting their individual seals for forwarding the sampled articles for chemical analysis by FSL. These are some of the infirmities which the prosecution case suffers from on account of the lack of evidence on compliance of the above two provisions. 12. So far as other aspect of the matter is concerned, P.W. 7 SI Shyam Sunder Singh had stated that he dispatched the sampled articles to FSL on 4.4.2004, which evidence is patently false inasmuch as Ext. 6, the report of the FSL indicates that the sampled articles were forwarded to the FSL on 15.4.2004 by the Officer Incharge of Piprahi police station and it was received in the office of the FSL on 1.6.2004, i.e., after one month and fourteen days. The report further indicates that it was prepared on 10.4.2005 after analysis of the sampled articles. Thus, there was yet another delay of eleven months in analyzing the substance and sending the report. 13. It has been held by a series of decisions including the two cited before us by learned counsel for the appellant, that if there was a delay in sampling the article or if there was further delay in analyzing the substance and submitting the report, then it shall be fatal to the prosecution charges. The decisions which have been cited before me by the learned counsel for the appellant further indicate that if the evidence was lacking on the transfer of the seized article for custody purpose, and maintaining the records as regards its storage and if the evidence was further lacking as to how the samples were drawn and if it is shown that the samples were not drawn as per the provision of section 55 of the Act, then the prosecution has necessarily to suffer. The above situations appear in the present case also. I have already pointed out the lack of evidence on all material aspect on compliance of the provision of sections 52A and 55 of the Act. The above situations appear in the present case also. I have already pointed out the lack of evidence on all material aspect on compliance of the provision of sections 52A and 55 of the Act. I have also pointed out the lack of evidence on the manner of storage and its certification. All these infirmities go to render the charges not proved, therefore, I am of the opinion that the learned trial judge was not justified in convicting the appellant and directing him to suffer rigorous imprisonment for the period as appears from the order of sentence. 14. In the result, the appeal succeeds and the same is allowed. The order of conviction and sentence passed upon the appellant is hereby set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case. 15. Before I part with the judgment, I want to put on record the anguish of this court that in spite of recoveries of Ganja or other narcotic drug or substance in as huge a quantity as could be in the case of Asharfi Yadav Vs. The State of Bihar reported in 2011(1) 635, which related to recovery of a huge quantity of Ganja weighing many hundreds of kilograms. The accused had to be acquitted on account of inept handling of the case on account of not complying with the mandatory and obligatory provisions of the Act. In this case also, the recovery was of 39 Kgs of ganja, but the case had to end in acquittal in this appeal only because the provisions, which I have just noted down, were not complied with. P.W 4 or P.W. 7 who were the officers responsible for investigating the case or complying with the provisions of the Act, appear giving evidence in a highly indifferent manner. Besides, the court found that they were not even aware of the provisions of the Act, the compliance of which could only render the full proof of the charges as regards obtaining the conviction of a drug peddler. Besides, the court found that they were not even aware of the provisions of the Act, the compliance of which could only render the full proof of the charges as regards obtaining the conviction of a drug peddler. It has been noted by this court in various cases that the police officers or even the officers of the Customs Department are not aware of the provisions which are required to be applied and complied both by them and those who carry out investigation and enquiry into the offence do it in a very casual manner without even looking to the statute book which requires them to act in a particular manner. It hardly requires to be noted that drug peddling is an international offence, which also impairs our national defence. It is an organized crime internationally and the most parts of the money earned through it, go to the terrorists or other persons who indulge in antinational activities. This is high time that the police officers and the officers of the Customs sit together and discuss the provision or the Heads of the two departments conduct extensive training courses for their officers so as to making them aware of the provisions, as a result of which the investigation/enquiries in the offences could be perfect and there is no lapse on their part as regards rendering evidence during trial. 16. Let a copy of this judgment be forwarded to the Director General of Police, Bihar as also to the Assistant Commissioner (Legal), Customs (Preventive) Headquarters, Bihar, Patna for information and taking necessary action in the above behalf. 17. Let a copy each of the judgment be given to Shri S.N. Prasad, APP, and also Shri Vinay Kumar Pandey, learned counsel appearing for the Customs Department, who is present during the dictation of this judgment.