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2012 DIGILAW 65 (PAT)

Sunil Chaudhary v. State of Bihar

2012-01-13

MANDHATA SINGH

body2012
JUDGMENT Mandhata Singh. J.-Prosecution Case initiated on fardbayan of one Ranjeet Kumar Singh. Sub-inspector of Police of Mohania P.S., District-Kaimur in short is that on receiving secret information the informant along with other police officials conducted a raid in the house of Baidhyanath Chaudhary, the house of the appellant and his brother Anil Chaudhary where they were residing. Sensing arrival of the police both the accused jumped from the roof of the house and succeeded to flee from there. Their house/room was searched and heroin like substance wrapped in polythene pack and paper pack were found kept on chauki in the room. Same was seized in presence of independent witnesses. On weighing total weight of substance was found 160 grams. After the seizure a seizure list was prepared. Witnesses voluntarily put their signatures on the same. The seized substance was sent to Forensic Laboratory for its examination, it was really any of the substances defined as Narcotic Drugs and Psychotropic Substance. Report from the Forensic Laboratory confirmed its being heroin. One of the accused namely Anil Chaudhary did not appear nor could be apprehended, so his case was spilt up and only the present appellant faced trial which ended in his conviction under Section 21(b) of the N.D.P.S. Act. 2. In all eleven (11) witnesses are examined in the case, they are PW 1 Sudama Singh, PW 2 Kamla Singh, PW 3 Binod Shankar Srivastava, PW 4 Ranjeet Kumar Singh informant of the case, PW 5 Geeta Devi, PW 6 Dinesh Prasad, PW 7 Pintu Prasad, PW 8 Nawal Kishore Rai, PW 9 Diwan Nashir Khan, PW 10 Gopal Mishra first I.O. of the case and PW 11 Sugriv Rai second I.O. of the case. 3. PW 5 is a hostile witness state to know nothing about the incident. PWs-6 and 7 are seizure list witnesses. PWs1, 2, 3, 8, 9 including PW 4 informant of the case and PW 10 Investigating Officer of the case are there to state the seizure in their presence which has not been doubted by the learned counsel for the appellant also. 4. The conclusion of the conviction by the trial Court is assailed only on the ground that mandatory provision of Section 55 of the N.D.P.S. Act is not observed in the case which vitiates the whole trial. 4. The conclusion of the conviction by the trial Court is assailed only on the ground that mandatory provision of Section 55 of the N.D.P.S. Act is not observed in the case which vitiates the whole trial. Section 55 of N.D.P.S. Act runs as follows:- "Police to take charge of articles seized and delivered.-An Officer-in-Charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the Officer-in-charge of the police station." 5. It is submitted that compliance of the section is mandatory that Officer-in-charge of police station shall take charge of seized article delivered to him and keep the same in safe custody pending the orders of the Magistrate and shall allow any Officer who may accompany such articles to the police station or who may be deputed for the purpose to affix his seal to such articles or to take samples of and from them, all samples so taken shall also be sealed with a seal of the Officer-in-charge of the police station. It is specifically submitted that sample/samples, if any, was/were taken, was sealed under the direction of Officer-in-charge with his seal is lacking so the sample/samples sent for examination to FSL may not be ascertained to be from seized articles. None of the prosecution witnesses is there to state taking sample of seized article or its sealing with the seal of Officer-in-charge of the police station. Further sample if any was sent for it examination that is done near about a year of the seizure. 6. Learned Additional Public Prosecutor also finds himself unable to point out arty material in corroboration of proper sampling and sealing. So, the conviction, in my view, reached by the trial Court is not liable to be sustained. 7. On the observation made above, evidence and circumstance of the case, the appeal is allowed. 6. Learned Additional Public Prosecutor also finds himself unable to point out arty material in corroboration of proper sampling and sealing. So, the conviction, in my view, reached by the trial Court is not liable to be sustained. 7. On the observation made above, evidence and circumstance of the case, the appeal is allowed. The judgment of conviction dated 13.01.2011 and Order of sentence dated 18.01.2011 passed in S.T. No.15 of 2010 by the Sessions Judge-cum-Special Judge. Kaimur at Bhabua against the appellant Sunil Chaudhary are set aside. He (appellant) is acquitted of the charge levelled against him and set at liberty forthwith if not required in any other case. 8. A copy of the judgment along with Lower Court Records be sent back to the trial Court forthwith. Appeal allowed.