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2013 DIGILAW 36 (PAT)

Shekhar Dutta v. State Of Bihar

2013-01-09

AMARESH KUMAR LAL, V.N.SINHA

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JUDGMENT (Per: HONOURABLE MR. JUSTICE V.N. SINHA) Heard counsel for the appellant and the State. 2. This appeal has been filed questioning the validity of the judgment of conviction dated 3.11.2010 and order of sentence dated 18.11.2010 passed by learned Sessions Judge, Katihar in Katihar Rail P. S. Case No. 2 of 2008 appertaining to G. R. Case No. 02 of 2008, whereunder the appellant herein was convicted/ sentenced under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as N.D.P.S. Act) to undergo rigorous imprisonment for a term of 15 years as also to pay fine of Rs.2,00,000/- and in default of payment of fine to undergo further rigorous imprisonment for one year. The appellant has further been convicted under Section 22 of N.D.P.S. Act for a term of 15 years with direction to pay fine of Rs.2,00,000/- in default of payment of fine to undergo further rigorous imprisonment for one year. Both the sentences have been directed to run concurrently. 3. It appears from the first information report of Katihar Rail P. S. Case No. 2 of 2008 that a written report was submitted by Suraj Kumar Thapa, Inspector Railway Protection Force CIB, Katihar to Officer-in-Charge, Government Railway Police, Katihar that he received information on 12.1.2008 at about 22.30 hours that narcotic (ganja) concealed in two wheeled Red, Blue attachee case was being carried in A C two tier Coach No. N F 6069 of Train No. 5632 (Guwahati Barmer/Bikaner Express). Having receiving the information Inspector RPF constituted a search team comprising of himself and constable P. K. Dubey and proceeded to Katihar Railway Station Platform No. 8 where he met constable(s) of G.RP, Katihar Ms. Satish Kumar and Ravi Ranjan and asked them to assist him in search of A C II tier coach of Train No. 5632 (Guwahati Barmer/Bikaner Express). The train arrived at about 23 hours on Platform No. 8 of Katihar Junction and A. C. II tier Coach No. NF 6069 of train no. 5632 was searched. Red, Blue wheeled attachee case was recovered beneath berth no. 23. The appellant travelling on berth no. 23 accepted that both the attaichee cases were his and disclosed his name and address. It is mentioned in the written report that the person of the appellant was also searched. 5632 was searched. Red, Blue wheeled attachee case was recovered beneath berth no. 23. The appellant travelling on berth no. 23 accepted that both the attaichee cases were his and disclosed his name and address. It is mentioned in the written report that the person of the appellant was also searched. From the person of the appellant journey ticket and one retiring room booking slip was recovered. The attaichi cases were unlocked by the appellant. Two pouches of narcotic concealed in plastic pouch tied with brown cellotape was recovered from one attaichi case weighing 19 kg, from the other attaichi case 10 kg of narcotic was recovered also concealed in the same manner. Besides narcotics one nokia mobile handset model no. 1108 was also seized. The seizure was made on 12.1.2008 at 23.10 hours by Inspector RPF in presence of on duty Train Ticket Inspector and other witnesses present and then brought to Railway Protection Force Post Katihar (East) for handing over the Appellant and seized article to Officer-in-Charge,G.R.P Katihar. The written report regarding seizure was prepared on 13.1.2008 and presented before the Officer-in-Charge G.R.P Katihar on 13.1.2008 at 15.15 hours. On the basis of which Katihar Rail P. S. Case No. 2 of 2008 dated 13.1.2008 was registered. Perusal of the said first information report further indicates that the seizure of 29 kg of narcotic was made by Inspector, RPF on 12.1.2008 at 23 hours. The officer-in-charge, G. R. P. having registered the case appointed Sri Suresh Prasad Sub-Inspector, G.R.P Katihar as an Investigating Officer of the case who prepared samples and sent the same for examination by Forensic Science Laboratory after obtaining orders from the Court. Having received the report from FSL confirming that the seized article is narcotic charge-sheet was submitted in the instant case. In the light of the charge-sheet cognizance was taken and trial proceeded before the Special Court. During trial prosecution examined as many as nine witnesses including RPF Inspector (P.W. 4), Investigating Officer (P.W. 9) and constables of RPF and GRP who assisted the Inspector RPF in conducting the search. After examining the witnesses the trial court examined appellant under Section 313 Cr.P.C. Special Court having considered the material on record passed the impugned judgment holding the appellant guilty of the offence under Sections 20(b)(ii)(c) and 22 of N.D.P.S. Act and sentenced him as stated above in paragraph 2. 4. After examining the witnesses the trial court examined appellant under Section 313 Cr.P.C. Special Court having considered the material on record passed the impugned judgment holding the appellant guilty of the offence under Sections 20(b)(ii)(c) and 22 of N.D.P.S. Act and sentenced him as stated above in paragraph 2. 4. Learned counsel for the appellant challenged the impugned judgment on the ground that seizure of narcotic from the two wheeled Red, Blue attaichi case has been made without observing the safeguards provided in Sections 41, 42, 43, 50, 52 and 55 of the N.D.P.S. Act as according to him P.W. 4 Suraj Kumar Thapa made search at 22.30 hours on 12.1.2008 was not authorized to search under Section 41 or 42 of the Act. He further submitted that search was also violative of Sections 50, 52 and 55 of the Act as before making search of the person and two attaichi cases the appellant was not given option to be searched before the Magistrate. He next submitted that the samples of the seized narcotic were not made as per the provisions contained in Sections 52 and 52(a) of the Act. Besides the violation of the aforesaid provisions counsel also pointed out that there has been considerable delay in producing the seized narcotic before the Officer-in-Charge as the seizure was made on 12.1.2008 at 22.30 hours but the seized articles were produced before the Officer-in-Charge of GRP on 13.1.2008 at 15.15 hours and there is no explanation for the delay of over 15 hours in production of the seized narcotic by the Inspector RPF before the Officer-in-Charge GRP, Katihar. 5. Learned counsel also submitted the small quantity from narcotics seized was sent to FSL as sample for examination. The remaining quantity of the seized narcotic was kept in Malkhana but as per the evidence of Investigating Officer (P. W. 9) was not produced in Court during trial as such it is difficult to connect the report of FSL concerning the sample with the narcotic seized from the two attaichi case of the appellant which was kept in the Malkhana of GRP, Katihar. Learned counsel further pointed out with reference to FSL report dated 16.12.2009 that samples were dispatched under Memo No. 35/08 dated 4.2.2008 through Special Messenger-Sub-Inspector, Yogendra Prasad but the same was received in the office of the Director, FSL on 13.2.2008 without explaining the delay in dispatch and receipt of the sample from GRP Katihar to FSL, Patna. The prosecution having not explained the delay in production of the sample in the FSL Patna, it cannot be said that the FSL report is about the narcotic seized from the two attachee cases of the appellant. 6. Learned counsel for the State has opposed the submission of the learned counsel for the appellant. According to him Section 50 of the Act is not applicable to the case in hand as seizure in the instant case is not from the person of the appellant but from his two attaichee cases. Reliance in this connection is placed on the judgment of the Supreme Court in the case of State of Rajasthan vs. Ram Chandra 2005 SCC (Cri) 1010 and State of H. P. vs. Pawan Kumar 2005(3)PLJR 85 (SC) para 15. 7. From the evidence of P.W. 4 Suraj Kumar Thapa, Inspector, RPF, Katihar it is quite evident that on receipt of the information on 12.1.2008 at 22.30 hours that narcotic is being carried in AC II tier Coach No. NF 6069 of Train No. 5632 (Guwahati-Barmer/Bikaner Express) he reached platform no. 8 of Katihar Railway Station where the said train was to arrive on 12.1.2008 with his inspecting team, after arrival of the train checked A C two tier coach, identified the two wheeled attaichi cases red, blue beneath berth no. 23, seized, searched the same forcing the appellant to detrain as search of the two suitcases in presence of the appellant and other officials including passengers at 23.10 hours revealed 29 kg of narcotic kept concealed therein. Appellant and the seized articles were produced before Officer-in-Charge of Katihar GRP on 13.1.2008 at 15.15 hours. Whereafter Katihar Rail P.S. Case No. 2 of 2008 was registered against the appellant for the offence under Sections 20 and 22 of the NDPS Act for possessing 29kg narcotic. The Officer-in-Charge, Katihar Rail P.S. having registered the case appointed P.W. 9 as I. O of Katihar Rail P.S. Case No. 2 of 2008. The evidence of P.W. 9 Investigating Officer corroborates the aforesaid fact. The Officer-in-Charge, Katihar Rail P.S. having registered the case appointed P.W. 9 as I. O of Katihar Rail P.S. Case No. 2 of 2008. The evidence of P.W. 9 Investigating Officer corroborates the aforesaid fact. It is thus quite evident that instant case was registered on the basis of search and seizure made by Inspector RPF, Katihar who was not authorized to search or seize narcotic from the appellant in the light of provisions of Sections 41 and 42 of the N.D.P.S. Act as in terms of Section 41 of the Act search and seizure can be made on the basis of a warrant and authorization issued by a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the 2nd class specially empowered by the State Government. In terms of Section 42 search, seizure and arrest can be made without warrant or authorization by an officer of superior rank to a peon, sepoy or constable of the departments of central excise, narcotics, customs, etc. including paramilitary forces or armed forces including police force as is empowered in this behalf by general or special order. 8. It is submitted on behalf of the appellant that instant prosecution is not only bad on account of illegal seizure made by Inspector RPF, Katihar but is also bad for the reason that seized article was produced after unexplained delay of more than 15 hours before Officer-in-Charge GRP Katihar who did not take any steps for safe custody of the seized narcotic until orders of competent court for sending of sealed samples to the concerned FSL and thereby mandatory provisions of Sub-Section 3 of Section 52 and 55 of the N.D.P.S. Act were violated and judgment of conviction is fit to be set aside for non-compliance of the aforesaid provisions. 9. Narcotic seized kept in Malkhana after taking sample for examination by Forensic Science Laboratory was neither produced nor the details of the narcotic kept in malkhana was indicated by the I.O. (P.W. 9) in his evidence as is evident from perusal of paragraph 16 to 24 of his evidence. Perusal of paragraph 19 to 22 of the evidence of I.O. further indicate that sample which was sent to FSL for examination was also made in absence of the appellant contrary to requirement of law. Perusal of paragraph 19 to 22 of the evidence of I.O. further indicate that sample which was sent to FSL for examination was also made in absence of the appellant contrary to requirement of law. Besides there has been considerable unexplained delay in sending the sample for examination to the FSL under letter no. 35/08 dated 4.2.2008 though seizure was made by Inspector RPF Katihar in the night of 12.1.2008 at 23.10 hours but seized narcotic was produced before Officer-in-Charge, GRP at Katihar on 13.1.2008 at 15.15 hours and sent for chemical examination to FSL under the order of District and Sessions Judge, Katihar vide Memo No. 35/08 dated 4.2.2008. In the entire prosecution evidence there is hardly any explanation for the delay and failure to comply the provisions of Sections 52 and 55 of the Act. In the circumstances, the impugned judgment of conviction and order of sentence is set aside and the appeal is allowed. The appellant is acquitted of the charge levelled against him under Sections 20 and 22 of the NDPS Act that on 12.1.2008 he illegally possessed 29 kg narcotic (ganja). The appellant be released forthwith, if not wanted in any other case. 10. Before parting with this order we observe that the conviction and sentence imposed on the appellant has been set aside by us for failure of the informant i.e. Inspector, RPF Katihar and the Investigating Agency including the Officer-in-Charge of GRP, Katihar to observe the safeguards provided under the NDPS Act. In this connection, it is worthwhile to note that drug abuse is a social malady. While drug addiction eats vitals of the society, drug trafficking not only eats into vitals of the economy of the country but illicit money generated by drug trafficking is often used for illicit activity including performing acts of terrorism. Appreciating such facts NDPS Act providing for stringent penalties for various offences was enacted and amended from time to time. Minimum punishment for 10 years imprisonment which may extend upto 20 years and a minimum fine of Rs.1,00,000/- which may extend upto Rs.2,00,000/- has been provided for most of the offences under the Act. Despite the stringent provisions under the Act drug business is booming in the State, addicts are rapidly rising. Minimum punishment for 10 years imprisonment which may extend upto 20 years and a minimum fine of Rs.1,00,000/- which may extend upto Rs.2,00,000/- has been provided for most of the offences under the Act. Despite the stringent provisions under the Act drug business is booming in the State, addicts are rapidly rising. To avoid acquittal of the accused persons under the Act on the ground of failure to observe the procedural safeguards under the Act it is recommended that the Director General of Police, Bihar and the Director General of Railway Protection Force should ensure that the officers serving the forces are made familiar with the provisions of the Act and Rules framed thereunder including the Guidelines contained in Standing Instruction 1/88 issued by the Narcotic Control Bureau. Clause 1.5 whereof provides that samples from the narcotic drugs and Psychotropic Substance seized must be drawn on the spot of recovery in duplicate in presence of search witnesses and the person from whose possession the drug is recovered a mention to this effect should invariably be made in the seizure list drawn on the spot. The officer should also be made familiar of Clause 3.8 of the Standing Instruction 2/88 to the effect that each Seizing Officer should deposit the drugs fully packed and sealed with his seal in Malkhana within 48 hours of seizure of such drugs with forwarding memo indicating certain particulars. The officers of the forces can be made familiar with the provisions of the N.D.P.S. Act, Rules and Guidelines only by organizing training from time to time. The Director General of Bihar Police & RPF having drawn training schedule as recommended above should submit report within three months.