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2012 DIGILAW 1140 (PAT)

Sudhir Kumar Tiwari v. State of Bihar

2012-08-17

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J. This appeal arises out of the judgment of conviction dated 03rd September, 2009 and order of sentence dated 08th September, 2009 passed in D.R.I. Case No. 23 of 2003 by the 5th Additional Sessions Judge, Muzaffarpur whereby the Trial Court has found and held the appellants guilty for the offence punishable under Section 25 of the Narcotic Drugs and Psychotropic Substances Act and sentenced them to undergo rigorous imprisonment for ten years and at the same time they have to pay fine of Rs. one lakh each. 2. The prosecution case is that the complainant, who is an Intelligence Officer in Directorate of Revenue Intelligence, Muzaffarpur, acting on secret information, on 28.09.2003 along with others members of the raiding party intercepted container truck, bearing Registration No. AS-25(B)-0446. The said truck was intercepted at Kanti in the district of Muzaffarpur, weighing 302.5 Kgs. of Ganja was recovered from the container truck, which was seized. 3. Following the provisions of the Narcotic Drugs and Psychotropic Substances Act, the sample of the seized ganja were made in three separate packets. The accused gave their statements. They were carrying ganja which was loaded from Lakhimpur, Raxaul to be delivered to one Aftab Miyan of Kanna Dumariya. Apparently a seizure list was prepared in which independent witnesses put their signature. 4. The Counsel appearing on behalf of the appellants has stated that the entire manner, in which the seizure was conducted, the manner in which the weight was taken and the fact that the seizure list witnesses have not been examined, would indicate that in fact the prosecution has not been able to show that they have seized ganja from the possession of the appellants. 5. The prosecution has examined five witnesses. Rajesh Kumar Srivastava, P.W.1 has supported the prosecution version. Counsel for the appellants points out that P.W.1 has stated at paragraph 9 that the seizure list was prepared at Kanti. 6. P.W.2., Rakesh Ranjan is posted as an Intelligence Officer. He had accompanied P.W.1 Rajesh Kumar Srivastava at the time when the seizure was made. According to him the ganja was weighed at the place of occurrence, i.e., Kanti, which came to 302.5 kg. and the Panchanama as well as the seizure list was prepared. 6. P.W.2., Rakesh Ranjan is posted as an Intelligence Officer. He had accompanied P.W.1 Rajesh Kumar Srivastava at the time when the seizure was made. According to him the ganja was weighed at the place of occurrence, i.e., Kanti, which came to 302.5 kg. and the Panchanama as well as the seizure list was prepared. However, in paragraph 15, he specifically states as follows: ^^ckgj esa rkSyus okyh e’khu eaxk;k x;k FkkA vkWfQl ds cxy ls eaxk;k x;k FkkA uke mldk ;kn ugha gSA fltj fyLV eSaus rS;kj ugha fd;k FkkA vkWfQl esa ykdj fltj fyLV cuk FkkA ,slk dguk xyr gS fd eSa jSfMx ikVhZ esa ugha FkkA ;g Hkh dguk xyr gS fd eSaus >wBk c;ku fn;k gSA** 7. Thus, the evidence of witnesses in this case that the seizure was not made at the place of occurrence rather it was made in the office of the informant. In the circumstances, it becomes difficult to believe that the seizure list was prepared at the P.O. and was signed by the independent witnesses, which is required by law. 8. The other witnesses, i.e., P.W.3, Indradeo, P.W. 4 Deepak Kumar and P.W.5 Anil Kumar, have supported the prosecution case, but have not disclosed anything regarding the manner in which the seizure list was prepared or for that matter, the manner in which the samples were separated and sent to the Forensic Laboratory for examination. The report of the Forensic laboratory has been marked as Exhibit-6, but has not been proved. 9. Learned Counsel for the appellants refers the judgment of this Court, delivered in Criminal Appeal No. 766 of 2009 dated 09.04.2010, wherein this Court has considered at paragraph 9, the manner in which the seizure list would be prepared and the manner in which the samples are to be separated. For the purposes of taking samples there is a direction of the Central Government issued by Standing Order no. 01 of 1989 dated 13.06.1989, which has been adopted by Drug Law Enforcement Agencies. There are specific directions with request to seizing trucks, drawing the samples therefrom, proper storage and the manner in which the said drugs could be disposed of by the officers concerned. 10. This Court is not going into the details in the said Standing Order no. 01 of 1989 dated 13.06.1989, in view of the facts of this case. There are specific directions with request to seizing trucks, drawing the samples therefrom, proper storage and the manner in which the said drugs could be disposed of by the officers concerned. 10. This Court is not going into the details in the said Standing Order no. 01 of 1989 dated 13.06.1989, in view of the facts of this case. This is a case where doubt has been raised regarding the manner in which the seizure was made. Ordinarily whenever seizure is made, it is expected that it will be done at the spot itself, but in the present case, this procedure was not followed. The statement of P.W.2, Rakesh Ranjan reveals that the seizure list was prepared at the office of the informant, raises a doubt regarding the said seizure list. Apart from this, the prosecution has failed to examine the seizure list witnesses and has also failed to prove the forensic report. 11. In these circumstances, this Court would conclude that prosecution has not been able to prove its case beyond reasonable doubt. Accordingly, the appellants are acquitted of the charges levelled against them. The appellants, who are in custody, are directed to be released forthwith, if not required in any other case. 12. In the result, this appeal is allowed. Appeal allowed.