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2012 DIGILAW 1063 (PAT)

Sanjivan Singh, Anirudh Giri v. State Of Bihar

2012-08-02

SHEEMA ALI KHAN

body2012
JUDGMENT 1. Sanjivan Singh is the appellant of Criminal Appeal No. 414 of 2000 whereas Anirudh Giri and Rajendra Giri are the appellants of Criminal Appeal No.415 of 2000. Mr. V.B.P. Ambastha, who has been appointed amicus curiae, represents the appellants of Criminal Appeal No.415 of 2000. 2. The appellants have been convicted under Section 20(b)(1) of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the ‘N.D.P.S. Act’). All the appellants have been sentenced to undergo Rigorous Imprisonment for each counts for five years. The prosecution case, in brief, is that on 12.9.1999 Sri Brij Kumar Singh, Inspector of Police(P.W.9) posted at Town P.S. Hajipur got secret information that certain persons involved in smuggling of Ganja had come to the house of Sanjivan Singh. After making a sanha entry the informant along with others proceeded towards the house of Sanjivan Singh. On reaching the house of Sanjivan Singh, the police party went to the first floor and entered the room on the south side, from where they recovered one kilogram of Ganja wrapped in a news paper and several plastic pouches each containing two ‘Bhars’ of Ganja kept under the bed. It is said that Sanjivan Singh, Anirudh Giri and Rajendra Giri were caught on the spot, they were searched but nothing was recovered from them. Binod Kumar Singh(P.W.10) was appointed investigating officer in the case. The police party seized the Ganja and took the signatures of P.W.4 and P.W.6 as well as the appellants, who were caught on the spot. It is the further case of the prosecution that the seized Ganja was weighed before preparation of the seizure list. 3. Ten witnesses have been examined in this case. Out of whom P.Ws. 1, 2, 3 and 5, the independent witnesses, have been declared hostile. P.W.4 and P.W.6 have not supported the seizure inasmuch as they have stated that the signatures, belong to them but the Ganja was not seized in their presence. As a result of their statement it could appear, that seizure was not made in the presence of P.W.4 and P.W.6. Apart from the aforesaid witnesses P.W.7 and P.W.8 are the Sub-Inspectors, P.W.9 is the informant of the case and P.W.10 is the investigating officer of both the cases. P.W.7, Uma Shankar Singh, has supported the prosecution case. As a result of their statement it could appear, that seizure was not made in the presence of P.W.4 and P.W.6. Apart from the aforesaid witnesses P.W.7 and P.W.8 are the Sub-Inspectors, P.W.9 is the informant of the case and P.W.10 is the investigating officer of both the cases. P.W.7, Uma Shankar Singh, has supported the prosecution case. He has stated that when he reached the house of Sanjivan Singh, police party went to the first floor and entered into the room on the south and recovered the Ganja. This witness has stated that they got the recovered Ganja weighed in presence of the appellants as well as witnesses and thereafter prepared the seizure list. In his cross-examination, this witness admits that they did not search the entire house or each room of the first floor of the house of Sanjivan Singh. This witness also admitted that no attempt was made to search the ground or the second floor of the house in question. In fact, this witness did not disclose the topography of the house of Sanjivan Singh. 4. P.W.8, Raj Kishore Singh, is also a member of the raiding party. He has supported the prosecution case and has stated that he went to the first floor of the house and entered the room on the south where the raiding party recovered the Ganja wrapped in a newspaper. This witness also supports and accepts the fact that the raiding party did not bother to search other rooms of the appellant’s flat/house or the ground and second floors of the house in question. P.W.8 also did not disclose the topography of the first floor of the house of Sanjivan Singh. 5. P.W.9, Brij Kumar Singh, is the informant in this case. He has stated that he could intuitively know that Sanjivan Singh lived on the first floor of the house. He admits that they did not search the ground floor or the entire room from where the Ganja was recovered. According to the informant, all the three appellants were present at the place from where the Ganja was recovered. In his cross-examination, he tried to cover up all the lacunas of the prosecution case by stating that they had searched the entire room from where the Ganja was recovered. According to the informant, all the three appellants were present at the place from where the Ganja was recovered. In his cross-examination, he tried to cover up all the lacunas of the prosecution case by stating that they had searched the entire room from where the Ganja was recovered. However, in his evidence he said that he did not try to find out as to who used to live in the house. Regarding personal search he had not informed the accused persons of their rights under Section 50 of the Code of Criminal Procedure, but since there was no recovery, it is not of much consequence. The most important fact is that P.W.10, Brij Kumar Singh, who was a member of the raiding party, is also an investigating officer in this case. As a member of the raiding party he supports the prosecution version, but entirely changes the case in his cross-examination by saying that all the three appellants were caught on chase. This evidence of this witness is conflicting with the evidence as stated by other members of the raiding party. This witness has also stated that the Ganja could not be weighed because of non-availability of weighing machine or other means of weighing the Ganja. He has examined the witnesses in this case. In his cross-examination he has stated that he examined Sanjivan Singh who disclosed that appellants Anirudh Giri and Rajendra Giri had come to visit Shambhu Tiwary. Similarly, he stated that P.W.2 Rambabu Rai in his statement recorded under Section 161 of the Code of Criminal Procedure has stated that the aforesaid two appellants, namely, Anirudh Giri and Rajendra Giri, were arrested from the house of one Shambhu Tiwary. From the perusal of the evidence it is apparent that the raiding party on mere speculation entered the house of Sanjivan Singh and that to to search only the southern room of the house and were successful in recovering the Ganja. It is surprising that no attempt was made by the raiding party to enter the other rooms of the house. It is also apparent that the seizure list witnesses did not support the actual seizure of Ganja. The evidence of the investigating officer is contrary to the facts regarding the manner in which the raid was conducted, which does not inspire the confidence of this Court. 6. It is also apparent that the seizure list witnesses did not support the actual seizure of Ganja. The evidence of the investigating officer is contrary to the facts regarding the manner in which the raid was conducted, which does not inspire the confidence of this Court. 6. In the facts and circumstances, both the appeals are allowed and all the three appellants of the aforesaid two appeals, who are on bail, are being acquitted of the charges under the N.D.P.S. Act. They are also discharged from the liability of their bail bonds.