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2012 DIGILAW 496 (PAT)

Gorakh Thakur v. State of Bihar

2012-03-23

ASHWANI KUMAR SINGH, NAVANITI PRASAD SINGH

body2012
JUDGMENT Navaniti Prasad Singh, J.:- The present appeal is directed against the conviction dated 24.02.2010 and sentence dated 04.03.2010, passed by the learned 2ndAdditional Sessions Judge, West Champaran, Bettiah in Trial No.07 of 1999 arising out of Shikarpur P.S. Case No.24 of 1999 (G.R. Case No.478 of 1999), by which the appellant having been found guilty for an offence under Section-20 (b) C of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) has been sentenced with 15 years rigorous imprisonment along with fine of Rs.1 lac and in case of default in payment of fine further 2 years of rigorous imprisonment. The date of occurrence is 09.03.1999. Since then the appellant has been in custody. 2. The prosecution case is based on self-statement of Vijayendra Kumar Sahi (P.W.3), the Officer-in-Charge of Shikarpur P.S. recorded on 09.03.1999, inter alia, alleging that when he along with Ashok Kumar Rai (P.W.4) and several other police personnel were on mobile duty in the evening, they found two persons coming from Simarahi village in suspicious condition. They signaled them to stop but they started running away. They were chased and apprehended. In presence of two independent witnesses, Rambalak Singh (P.W.1) and Md. Sabeer (P.W.2) they were questioned and they disclosed their name as Gorakh Thakur, the appellant and Md. Firoz @ Munna Mian, the co-accused who died in course of trial. It is alleged that on being searched from the appellant a country made pistol with five live cartridges were recovered. Allegedly from inside the trousers two packets, each one containing ½ kg of Charas was recovered. From the other co-accused Md. Firoz @ Munna Mian allegedly one packet of Ganja was recovered. Seizure list was prepared by Vijayendra Kumar Sahi (P.W.3), the Officer-in-Charge of Shikarpur P.S. on which independent witnesses P.Ws.1 & 2 signed. On basis of the aforesaid information Shikarpur P.S. Case No.24 of 1999 was instituted under Section-47A of the State Excise Act and Section-20/22 of the N.D.P.S. Act and investigation was entrusted to Ashok Kumar Rai (P.W.4) by Vijendra Kumar Sahi (P.W.3). 3. Upon charge-sheet being filed and cognizance of offence having been taken, the appellant pleaded not guilty and was tried. In course of trial, prosecution examined four witnesses. P.Ws.1 & 2, as noticed above, were independent seizure list witnesses. They have completely turned hostile. P.W.3 is the informant. 3. Upon charge-sheet being filed and cognizance of offence having been taken, the appellant pleaded not guilty and was tried. In course of trial, prosecution examined four witnesses. P.Ws.1 & 2, as noticed above, were independent seizure list witnesses. They have completely turned hostile. P.W.3 is the informant. He admits that he did not inform the accused persons of the right to be searched before the Gazetted Officer nor they were searched before the Gazetted Officer. He admitted that on the seizure list there is no signature of the Investigating Officer, Ashok Kumar Rai (P.W.4.) He also disclosed that he did not remember when the accused persons were sent for judicial remand. P.W.4, Ashok Kumar Rai is the person to whom investigation was entrusted. He admits in his cross-examination that the appellant and the co-accused were sent to judicial custody on 11.03.1999 (though arrested on 09.03.1999). He has proved the report received from the Director, Forensic Science Laboratory, Government of Bihar, Patna. He has admitted that in course of investigation he examined several officials who were allegedly present at the time of search, seizure and arrest (prosecution has not examined even a single such witness). He admits that he had not sent any report to the Superintendent of Police, Bettiah. He has proved the Forensic Science Laboratory report as Ext.7. A perusal of Ext.7 shows that two tin containers duly sealed were sent from the Court of Chief Judicial Magistrate, West Champaran for examination on 22.03.1999 by special messenger, which was received at the Forensic Science Laboratory on 03.05.1999 and the report was sent to the Court on 11.10.1999. He admits that though the search, seizure and arrest were made at about 6:30 pm on 09.03.1999 the formal F.I.R. was registered on 10.03.1999 at about 2:10 pm. He admits that the material exhibits have not been produced in the Court. He admits that in the case diary it is not mentioned as to the quantity of the samples drawn and the quantity sent for examination. He denies the suggestion that the fire arms and Charas were planted by the prosecution to falsely implicate the appellant because he thought that the appellant was notorious criminal wanted in other cases also. 4. On basis of the aforesaid, Mr. He denies the suggestion that the fire arms and Charas were planted by the prosecution to falsely implicate the appellant because he thought that the appellant was notorious criminal wanted in other cases also. 4. On basis of the aforesaid, Mr. Suraj Narain Prasad Sinha, learned Senior Counsel submits that the conviction of the appellant cannot be upheld inasmuch as the prosecution has failed to conclusively prove that what was recovered from the appellant was in fact Charas. 5. In our opinion, he rightly submits the same. Before a person can be charged for committing an offence punishable under the said Act, the onus is upon the prosecution to establish conclusively that was recovered from the possession of the person was, in fact, a narcotic drug or a psychotropic substance. 6. From the evidence as noted above, it would appear that what was seized from the person of the appellant was, in the opinion of the Officer-in-Charge, Charas but that is only an opinion. The punishment under the Act is very drastic. The provisions have to be interpreted in a very strict manner. If we look to Section-52 A of the Act we find that samples have to be drawn in presence of a Magistrate who has to certify the correctness of any list of sample so drawn. If we then look to Section-55 of the Act the substance seized has to be kept in a sealed condition and samples have also to be kept sealed with the Officer-in-Charge of the police station. The report of arrest or seizure has to be made to immediate superior Officer within 48 hours as per Section-57 of the Act. 7. In the facts of the present case, we find that as there is no evidence that the substance seized from the appellant was ever sealed. We have also no evidence whether they were brought to the Magistrate in a sealed condition and in his presence samples were drawn and sealed for being sent to the Forensic Science Laboratory for examination. There is no certification to that effect by the Magistrate. Even though it is said that the samples were sent through special messenger on 22.03.1999, there is no explanation as to why it reached the Forensic Science Laboratory at Patna almost a month and a half thereafter, on 03.05.1999. There is no certification to that effect by the Magistrate. Even though it is said that the samples were sent through special messenger on 22.03.1999, there is no explanation as to why it reached the Forensic Science Laboratory at Patna almost a month and a half thereafter, on 03.05.1999. It is not explained again as to why though the seizure was effected on 09.03.1999 and only two weeks thereafter it was sent for examination. To top it all, this material exhibit was itself never produced in the Court. 8. Thus, in our view, the prosecution failed to establish the onus which lays squarely on it that the substance that was seized from the possession of the appellant was in fact the same substance, the sample whereof was sent for chemical examination and what was said to be Charas upon the chemical examination. As indicated above, unless the prosecution establishes beyond reasonable doubt the recovery of substance as Charas by cogent and undisputed evidence, the very foundation of the case remains to be established and, in absence whereof, no person can be held to be guilty for violating the provisions of the Act. 9. Thus, in the present case we have no option but to hold that what was recovered from the appellant has not been proved to be beyond reasonable doubt as Charas. We may add that so far as search and seizure is concerned, apart from P.Ws.2 & 3 no other witnesses have supported the prosecution case. Two independent witnesses P.Ws.1 & 2 have completely turned hostile. There were several witnesses who were examined in course of investigation but no explanation has been given whatsoever by the prosecution for not examining them. The appellant was undisputedly arrested at about 6:30 pm on 09.03.1999 when the fardbeyan was recorded being the self-statement of P.W.3 and the seizure list drawn up but the formal F.I.R. was registered only at about 2:10 pm on the next day, that is, on 10.03.1999 and appellant was sent for judicial remand on 11.03.1999. 10. Having heard the parties and considered the matter, in our view, in view of the aforesaid facts, as noticed above, it cannot be said that the prosecution has established with all strictness and beyond reasonable doubt the guilt of the appellant. The appellant has to be given benefit of doubt and acquitted accordingly. 10. Having heard the parties and considered the matter, in our view, in view of the aforesaid facts, as noticed above, it cannot be said that the prosecution has established with all strictness and beyond reasonable doubt the guilt of the appellant. The appellant has to be given benefit of doubt and acquitted accordingly. The judgment of the Trial Court on conviction and sentence is set aside. The appellant is directed to be released forthwith, if not required in any other case. The appeal is allowed. I agree. Appeal allowed.