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2013 DIGILAW 155 (PAT)

Harish Mahto v. State of Bihar

2013-02-01

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT (ORAL) Hemant Kumar Srivastava, J. Heard learned counsel appearing for the appellant as well as learned Additional Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction dated 27.07.2012 and sentence order dated 30.07.2012 passed by 1st Additional Sessions Judge-cum-Special Judge. N.D.P.S. Act, Gopalganj in Rail Siwan (Thawey) P.S. Case No. 42 of 2007 /Trial No.34 of 2008 by which and whereunder he convicted the appellant for the offences punishable under sections 328 of the Indian Penal Code and 22 (b) of N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for six years under Section 22 (b) of N.D.P.S. Act and to undergo rigorous imprisonment for six years under Section 328 of the Indian Penal Code and directed that both the above stated sentences shall run concurrently. 3. In brief, the prosecution case is that PW 3, Madan Das, gave his fardbeyan to A.S.I., Sidhnath Singh of Rail Police. Thawey on 01.11.2007 in emergency ward, Sadar Hospital. Gopalganj to this effect that on 30.10.2007, he came Chapra Junction by Awadh Aasam Train from Meghalaya and after that he boarded in a narrow gauge train for going to his village. In the meantime, a young man came in the compartment and occupied seat in front of his seat. The aforesaid young man developed intimacy with the PW 3 and when train reached near Chapra Kachahri Station, the aforesaid young man gave biscuit to him. He further stated that he ate the biscuit but after sometime he felt uneasiness and lost his conscious. He further stated that he regained his consciousness in hospital and gave his fardbeyan to police. He further stated in his fardbeyan that apprehended accused had already been searched by the police. 4. On the basis of aforesaid fardbeyan, Rail Siwan (Thawey) P.S. Case No. 42 of 2007 was registered under Sections 328, 379, 411 of the Indian Penal Code and 21/22 of N.D.P.S. Act and accordingly, formal first information report for the above stated offences was drawn against the appellant. The matter was investigated by the Investigating Officer and after completion of investigation, the Investigating Officer submitted charge-sheet for the offences punishable under Sections 328,379,411 of the Indian Penal Code and 21/22 of N.D.P.S. Act against the appellant. 5. The matter was investigated by the Investigating Officer and after completion of investigation, the Investigating Officer submitted charge-sheet for the offences punishable under Sections 328,379,411 of the Indian Penal Code and 21/22 of N.D.P.S. Act against the appellant. 5. On being receipt of the charge-sheet, the cognizance of the offences was taken by learned Sessions Judge, Gopalganj and he transferred the case of the petitioner to Special Court for trial. 6. The appellant was charged for the offences punishable under Sections 22 (c) of N.D.P.S. Act and 328 of the Indian Penal Code to which he denied the charges and claimed to be tried. 7. In support of its case, prosecution examined, altogether, three witnesses and also got exhibited seizure list as Exhibit-l and signature of PW 3 on fardbeyan as Exhibit-2. The statement of appellant was recorded under Section 313 of the Cr PC in which he claimed himself to be innocence and denied the entire prosecution story. No evidence was adduced on behalf of the appellant in support of his defence. 8. The learned trial Court having relied upon the testimony of prosecution witnesses as well as documentary evidences available on the record passed the impugned judgment of conviction and sentence order in the manner as stated above. 9. Learned counsel appearing for the appellant assailed the impugned judgment of conviction and sentence order arguing that no report of forensic science laboratory was produced before the trial Court in course of trial to prove this fact that intoxicated tablets were recovered from possession of the appellant and. appellant gave intoxicated biscuit to PW 3 and apart from this, the person, who is said to have made search of the appellant, was not examined by the prosecution and furthermore, Investigating Officer of this case has also not been examined and the mandatory provisions of N.D.P.S. Act have not been complied with and, therefore, learned Court below committed illegality in convicting and sentencing the appellant under Sections 22(b) of N.D.P.S. Act and Section 328 of the Indian Penal Code. 10. On the other hand. 10. On the other hand. learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order submitting that PW 3 identified the appellant in dock and specifically stated that it was appellant who had provided intoxicated biscuit to him and furthermore, seizure list corroborates this fact that the intoxicated A.T. Van banned tablets were recovered from possession of the appellant. 11. As I have already stated that in support of its case, the prosecution examined, altogether, three witnesses. Out of them, PW 3 is informant whereas PW 2 is a witness on seizure list and PW 1 is co-villager of the informant. 12. PW 1 has stated that father of the informant got information from Thawey Rail Police about the condition of PW 3 and having got the aforesaid information, the father of informant (PW 3) and this witness went Thawey Rail Police Station where they found the PW 3 in unconscious state. This witness stated that when he was at Thawey Rail Police Station, the police took his signature on a paper and at that time the appellant had been lodged in Thana Hajat. 13. Admittedly, nothing was recovered from conscious possession of the appellant in presence of this witness. 14. PW 2 stated that in the night of 30.10.2007 when he boarded in a train at Dubouli Railway Station, one old man pointed towards a person who was fleeing with luggage and after that this witness caught the aforesaid person and handed over the said person to police. This witness further stated that police searched the aforesaid person and recovered four tablets, pink coloured powder kept in puriya and some cash as well as biscuit from his possession. Police prepared seizure list and this witness put his signature on the seizure list. This witness proved the seizure list as Exhibit -1. This witness also claimed to identify the appellant who was present in dock at the time of recording of the statement of this witness. This witness further stated that one person was lying unconscious in compartment and the aforesaid person was brought to Thawey Rail Police Station. He further stated that when the aforesaid person regained his consciousness, he disclosed his name as Ramdas of village Parsauni. 15. PW 3 Madan Das is informant of this case. This witness further stated that one person was lying unconscious in compartment and the aforesaid person was brought to Thawey Rail Police Station. He further stated that when the aforesaid person regained his consciousness, he disclosed his name as Ramdas of village Parsauni. 15. PW 3 Madan Das is informant of this case. This witness stated that on 30.10.2007 he boarded in train at Meghalaya and the aforesaid train reached Chhapara Junction at about 08:00 p.m. on 31.10.2007. This witness further stated that at about 01:40 a.m. of 01.11.2007 he boarded in a narrow gage train for going to Didhwa Dubauli Station. This witness further stated that the appellant also boarded in the aforesaid train and sat in front of his seat. This witness further stated that appellant gave one biscuit to him and when he ate the aforesaid biscuit, he started loosing his sense and when the train reached at Chapra Kachahri Railway Station, he lost his sense and regained his consciousness at Thawey Rail Police Station and after that he was brought to Sadar Hospital. Gopalganj where his statement was recorded. This witness stated that it was appellant who provided intoxicated biscuit to him. 16. On careful scrutiny of statements of prosecution witnesses. I find that PW 2 stated that he boarded in train in the night of 30.10.2007 and in the same night he caught the appellant and handed him over to police but PW 3 has stated that his train reached at Chapra Junction at about 08:00 p.m. on 31.10.2007 and he boarded in narrow gauge train at 01:40 a.m. of 01. 11.2007. So, the statement of PW 2 appears, to be doubtful because according to him he caught the appellant in the night of 30.10.2007 whereas according to PW 3 the alleged occurrence took place on 01.11.2007. Furthermore. PW 3 stated in his deposition that he regained his consciousness at Railway Police Station. Thawey but in his fardbeyan he stated that he regained his consciousness at Sadar Hospital. Gopalganj where his fardbeyan was recorded. Furthermore. in his fardbeyan. PW 3 has stated that before recording his fardbeyan the appellant had already been arrested and. therefore, it is quite clear that PW 3 had got no opportunity to see the appellant at the time of recording his fardbeyan. Gopalganj where his fardbeyan was recorded. Furthermore. in his fardbeyan. PW 3 has stated that before recording his fardbeyan the appellant had already been arrested and. therefore, it is quite clear that PW 3 had got no opportunity to see the appellant at the time of recording his fardbeyan. Moreover, PW 3 claimed to have identified the appellant at the time of recording his deposition in the trial Court but even if the aforesaid identification is taken into account, then also, it is not established that the Biscuit, which had been given by the appellant to PW 3, was intoxicated Biscuit. 17. Admittedly, no chemical examination report was produced before the trial Court in course of trial and in absence of aforesaid report, it is very difficult to come on this finding that the seized tablets and powder were intoxicated items and, therefore, the appellant could not have been convicted under Section 22(b) of N.D.P.S. Act. 18. According to prosecution case, the appellant was searched by one Sidhnath Singh. AS I. of Rail Police Thawey camp Didhwa Dubouli Railway Station and the seizure list was also prepared by the aforesaid AS. I. PW 2 has proved the seizure list as Exhibit -1 but admittedly, the aforesaid Sidhnath Singh. A.S.I. has not been examined by the prosecution and furthermore. Exhibit -1, seizure list does not show this fact as to whether mandatory provision of Section 50 of N.D.P.S. Act was complied with or not because there is not even whispering in the aforesaid seizure list that the above stated AS.I. had complied with the mandatory provision of Section 50 of N.D.P.S. Act. Apart from this, the Investigating Officer of this case has also not been examined and the appellant could not get opportunity to ask question from the Investigating Officer of this case as to whether mandatory provision of Section 50 of N.D.P.S. Act had been complied with or not and. therefore, in my view, the conviction of the appellant could not have been passed under Section 22(b) of N.D.P.S. Act. 19. therefore, in my view, the conviction of the appellant could not have been passed under Section 22(b) of N.D.P.S. Act. 19. Similarly the conviction of the appellant under Section 328 of the Indian Penal Code is also not in accordance with law because PW 3 claimed to have identified the appellant after three years of the alleged occurrence and moreover, prosecution could not succeed to prove this fact that the Biscuit, which had been provided by this appellant to PW 3. was an intoxicated item. 20. On the basis of aforesaid discussions. I am of the opinion that impugned judgment of conviction and sentence order are erroneous and must be set aside. Accordingly, this criminal appeal is allowed and the impugned judgment of conviction dated 27.07.2012 and sentence order dated 30.07.2012 are, hereby, set aside. The appellant is acquitted of the above stated charges. He is in jail. He is directed to be released forth with, if not required in any other case. Appeal allowed.