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2013 DIGILAW 539 (PAT)

Pramod Ram @ Pramod Das v. State of Bihar

2013-04-24

ASHWANI KUMAR SINGH

body2013
ORAL JUDGMENT Heard learned counsel for the appellant and the learned counsel appearing for the State. 2. The present appeal has been preferred against the judgment of conviction dated 28th April, 2011 and the order of sentence dated 3rd May, 2011 passed in Trial No. 46 of 2005 arising out of Narkatiyaganj Rail P.S. Case No. 32 of 2005 whereby the learned Additional Sessions Judge, Fast Track court No.-V, Bettiah, West Champaran has found and held the appellant guilty under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short ‘the NDPS Act’) and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lakh and in default to undergo rigorous imprisonment for a further period of two years. He has further been convicted under Section 23(b) of the NDPS Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 Lakh and in default to undergo rigorous imprisonment for the further period of two years. However, the sentences have been directed to run concurrently. 3. One Sunil Kumar Bhadra, an Assistant Commandant, ‘C’ COY, Seema Suraksha Bal (For short ‘SSB’), 19th Batalliion, Bhikhnathori made seizure of 7.5 kg ganja at about 6.40 p.m. on 27.8.2005 at Bhikhnathori Railway Station in an abandoned condition. He further seized 5 packets of ganja kept in an empty cement bag weighing 12.8 kg at about 11.30 a.m. on 30th August, 2005 at the Bhikhnathori Railway Station. Two persons, namely, Pramod Ram @ Pramod Das, the appellant and Ram Pyare Das @ Sadhu Jee were apprehended in respect of the seizure made on 30th August, 2005 by said Sunil Kumar Bhadra. He forwarded the two seizure memos prepared by him on 27th August, 2005 and 30th August, 2005 respectively and the two apprehended accused persons to the Incharge, Narkatiyaganj Rail Police Station and, accordingly, Narkatiyaganj Rail P.S. Case No. 32 of 2005 dated 30th August, 2005 was registered at 10 p.m. under Sections 21 and 22 of the NDPS Act and investigation was taken up. The police investigated the case and submitted charge sheet under Sections 21 and 22 of the Act against the appellant and co-accused Ram Pyare Das. 4. The trial court framed charges under Sections 20(b), 22(b) and 23(b) of the Act against them. The police investigated the case and submitted charge sheet under Sections 21 and 22 of the Act against the appellant and co-accused Ram Pyare Das. 4. The trial court framed charges under Sections 20(b), 22(b) and 23(b) of the Act against them. However, in course of trial, the co-accused Ram Pyare Das died and the trial court dropped the case as against him. 5. In order to prove the charge, in all, 13 witnesses have been examined on behalf of the prosecution. The defence did not adduce any evidence. However, the appellant in his statement recorded under Section 313 Cr.P.C. pleaded innocence and contended that he has falsely been implicated in the case. 6. P.W. 1, Puneshwar Singh, has proved his signature on the seizure memo dated 30th August, 2005, which has been marked as Ext. 1. In cross-examination, he admitted his unawareness about the articles seized for which the seizure memo over which he signed was prepared. 7. P.W. 2, Rajendra Prasad, is also a witness to the seizure memo dated 30th August, 2005. He proved his signature which has been marked as Ext. 1/1. He stated that five packets of ganja weighing 12.8 kg were seized. In cross-examination, he admitted that he personally did not know as to whether the seized packets contained ganja. He stated that since some one else told him that the articles seized were ganja and, as such, he presumed the same to be ganja. He further admitted that at the request of the police, he had put his signature over the seizure memo. It would be relevant to mention here that P.W. 2 has not uttered a word regarding recovery of the offending articles from the possession of the appellant. 8. P.W. 3, Jangi Yadav and P.W. 4 Raju Sah have been declared hostile. They have been cross-examined by the prosecution and their attentions have been drawn towards the previous statements made by them before the police. However, nothing cogent could come out in their cross-examination. Moreover, the investigating officer of the case has not been examined in course of trial and, as such, their evidence is of no help to the prosecution. 9. P.W. 8, Sunil Kumar Bhadra, is the informant of the case. However, nothing cogent could come out in their cross-examination. Moreover, the investigating officer of the case has not been examined in course of trial and, as such, their evidence is of no help to the prosecution. 9. P.W. 8, Sunil Kumar Bhadra, is the informant of the case. He stated that on 30th August, 2005, he was Incharge of Bhikhnathori B.O.P. On that date, while he was on patrolling duty, at about 11.30 a.m., he received a confidential information that some smugglers are likely to reach at the Bhikhnathori Railway Station with ganja. On receipt of such information, he along with some other SSB personnel came to the Bhikhnathori Railway Station. At the railway station, they found three persons sitting with a cement bag. A search was conducted and from the alleged cement bag five packets of ganja weighing 12.8 kg were recovered. According to him, the search was conducted in presence of two independent witnesses. He has proved his signature on the seizure memo dated 30th August, 2005 which has been marked as Ext. 2. He further stated that one of the suspected accused managed to escape. However, the two others, who were apprehended, on inquiry, disclosed their names as Ram Das and Ram Pyare Das. He also proved the seizure memo dated 30th August, 2005 which has been marked as Ext. 3. He identified the appellant in dock and disclosed his name as Ram Das. In cross-examination, he stated that both the apprehended accused admitted that they were joint owners of the seized cement bag containing five packets of ganja. He further stated that he had offered himself for search at the railway station but, he could not disclose name of the person who searched his person. He admitted that the seized packets of ganja were weighed in the camp of the SSB. According to him, his Head Constable had deposited the seized ganja in Narkatiyaganj Rail Police Station. He also admitted that he had not drawn the samples from the seized packets of ganja. He further admitted that the investigating officer never recorded his statement in course of investigation. 10. P.W. 5, Newton Das Chaudhary, a SSB Constable, stated that on receipt of secret information regarding smuggling of gnaja from Nepal, he also reached at the Bhiknathori railway station. He further admitted that the investigating officer never recorded his statement in course of investigation. 10. P.W. 5, Newton Das Chaudhary, a SSB Constable, stated that on receipt of secret information regarding smuggling of gnaja from Nepal, he also reached at the Bhiknathori railway station. According to him, two persons were found sitting with a cement bag in the eastern side of the railway station. On search, five packets of ganja weighing 12.8 kg were found in that bag. On inquiry, the two suspected persons, who were apprehended, disclosed their names as Atma Ram Das and Pramod Ram. According to him, the seizure memo was prepared in presence of two independent witnesses and the informant, S.K. Bhadra (P.W. 8), himself handed over the seized packets of ganja and the two accused persons to the Narkatiyaganj Rail Police Station. In cross-examination, he contended that the alleged occurrence took place at about 10 p.m. and the packets of the seized ganja were weighed at the place of occurrence itself. He further conceded that prior to the search and seizure of the contraband, the informant did not offer himself for search. He also admitted that the seized packets of ganja were not sealed by the informant of the case. 11. P.W. 6, Madhav Chakraborty, another Constable of SSB corroborated the statements made by P.W. 5 in his examination-in-chief. However, in cross-examination, he contended that the alleged ganja was seized at 11.30 p.m. and the seizure memo was prepared on the next day in his presence at 8-9 a.m. in the camp of SSB. According to him, the distance of SSB Camp from the Bhikhnathori Railway Station is 100 yards. 12. P.W. 7, Shankar Dev Verma, another Constable of SSB, stated in examination-in-chief that on 30th August, 2005, a secret information was received regarding smuggling of ganja at about 10 p.m. pursuant to which, the informant and other constables of SSB proceeded to the Bhikhnathori Railway Station. According to him, two persons were found sitting near a betel shop situated towards east of the railway station with a bag containing 12.8 kg of ganja. On inquiry, both the persons acknowledged that the incriminating cement bag belong to them. They disclosed their names as Ram Pyare and Pramod Ram. According to him, two persons were found sitting near a betel shop situated towards east of the railway station with a bag containing 12.8 kg of ganja. On inquiry, both the persons acknowledged that the incriminating cement bag belong to them. They disclosed their names as Ram Pyare and Pramod Ram. According to him, the seized ganja and the accused were brought to the SSB Camp and subsequently, they were handed over to the Narkatiyaganj Rail Police Station by P.W. 8, namely, S.K. Bhadra. In cross-examination, he admitted that the seized bag of ganja was not weighed at the railway station. According to him, even the seizure memo was not prepared at the place of seizure. The seized ganja and accused were brought at the SSB Camp situated at a distance of 100 yards from the Bhikhnathori Railway Station. 13. P.W. 9, Samiran Das, a Havildar of SSB 19th Batallion, P.W. 10, Deobrato Das, P.W. 11, Mihir Kanti Nath, P.W. 12, Sushanta Sinha and P.W. 13, Moti Lal Deo Tripura, all constables of SSB 19th Batallion had gone together with the informant on the date of occurrence to the Bhiknathori railway station where the alleged cement bag containing ganja is said to have been recovered. In cross-examination, all of them admitted that their statements were never recorded by the investigating officer of the case in course of investigation. 14. After having heard the parties and perused the evidence, I find that the prosecution has failed to prove the fardbeyan and the formal FIR of the case. The investigating officer of the case has not been examined. There is no explanation for his non-examination. The witnesses examined on behalf of the prosecution have contradicted each other in material particulars in respect of time of occurrence, place of weighment of the seized contraband, preparation of seizure memo and handing over of the seized packets of ganja and the apprehended accused persons to the P.S. The informant claims that the seizure of ganja in question was made at 11.30 a.m. on 30th August, 2005 whereas P.Ws. 5, 6 & 7 categorically state that the seizure of ganja was made in the night of 30th August, 2005 at about 10 p.m. or 11.30 p.m. The informant claims that the seizure memo was prepared at the place of occurrence itself whereas P.Ws. 5, 6 & 7 categorically state that the seizure of ganja was made in the night of 30th August, 2005 at about 10 p.m. or 11.30 p.m. The informant claims that the seizure memo was prepared at the place of occurrence itself whereas P.Ws. 5, 6 & 7 state that the seizure memo was prepared in the SSB Camp situated at a distance of 100 yards from Bhikhnathori Railway Station. The informant claims that the apprehended accused persons and the seized ganja were handed over to the Narkatiyaganj Rail Police Station by the Head Constable of SSB whereas the other witnesses examined on behalf of the prosecution state that the accused persons and the seized ganja were handed over to the Narkatiyaganj Rail Police Station by the informant of the case. 15. I further find that the witnesses including the informant of the case state that their statements were never recorded by the investigating officer of the case. Thus, apparently, they were examined for the first time in the court in course of trial. Under the circumstances, the credibility of the witnesses examined for the first time in court becomes extremely doubtful. 16. Admittedly, the seizure memo witnesses have not uttered a word regarding recovery of any offending article from the possession of the appellant. 17. It would be pertinent to mention here that a report of Forensic Science Laboratory issued under the signature of the Regional Director, Regional Forensic Science Laboratory, Muzaffarpur, Bihar has been marked by the trial court as Ext. 4 under Section 294 of the Code of Criminal Procedure. From perusal of the Forensic Science Laboratory report, it would appear that 5 sealed tin dibbas marked as A, B, C, D & E were received in the office of the Regional Director, Regional Forensic Science Laboratory, Muzaffarpur on 29.9.2005. Upon examination of the samples, the report was issued on 6.7.2007. The same was sent to the court of the District & Sessions Judge, Bettiah, West Champaran and the trial court marked the same as Ext. 4 on 10.12.2010. It would appear from the result of examination that the dry brown crust vegetable substances and dry brown flowering and fruiting vegetable substances contained in the tin dibbas marked as A, B, C, D & E were found to be ganja. 4 on 10.12.2010. It would appear from the result of examination that the dry brown crust vegetable substances and dry brown flowering and fruiting vegetable substances contained in the tin dibbas marked as A, B, C, D & E were found to be ganja. However, there is nothing on record to show as to who drew the samples of ganja and sent the same to the Forensic Science Laboratory for analysis and test. Under such circumstance, the test report of the Forensic Science Laboratory is of no consequence. 18. The material exhibits i.e., the seized packets of ganja, have also not been produced in the court. It was necessary for the prosecution to establish by cogent evidence that the alleged quantity of ganja was seized from the possession of the accused persons. The best course would have been that the seized materials ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to the recovery of ganja and production of the seizure memo would not be sufficient to establish the recovery of ganja in question. 19. Apart from the aforesaid factual deficiencies in the prosecution case, I find from the evidence on record that the informant proceeded to the place of occurrence with the police personnel of SSB on receipt of a confidential information. He had enough time to reduce the information in writing and report the same to the immediate superior officer. There is nothing on record to suggest that any such information was ever written or communicated to any superior officer. There is nothing on record to show that even after the alleged search and seizure the informant reported about the matter to his immediate superior officer. 20. At this stage, it would be relevant to refer to Section 42 of the NDPS Act, which reads as under:- “42. There is nothing on record to show that even after the alleged search and seizure the informant reported about the matter to his immediate superior officer. 20. At this stage, it would be relevant to refer to Section 42 of the NDPS Act, which reads as under:- “42. Power to entry, search, seizure and arrest without warrant or authorization.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs, control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into an search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) detain and search, and if he thinks proper, arrest and person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso to his immediate official superior.” 21. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat since reported in (2002) 2 SCC 513, a three Judge Bench of the Apex Court held that compliance with Section 42 of the NDPS Act is mandatory and failure to take down the information in writing and forthwith send a report to immediate superior officer would cause prejudice to the accused. In Sajan Abraham v. State of Kerala since reported in (2001) 6 SCC 692 , a three Judge Bench of the Apex Court held that Section 42 was not mandatory and substantial compliance was sufficient. The conflicting opinions regarding the scope and applicability of Section 42 of the NDPS Act is no more res integra and stand answered by a Constitution Bench judgment of the Apex Court in Karnail Singh v. State of Haryana since reported in (2009) 8 SCC 539 . In the said judgment, the Apex Court noticed, if there is total non-compliance with requirements of sub-sections (1) and (2) of Section 42, the same would be impermissible. However, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. The Apex Court in paragraph-35 of the judgment in Karnail Singh (supra) held as under: “35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a)The officer on receiving the information (of the nature referred to in sub-section (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the mover either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.” 22. From the evidence as discussed, hereinabove, apparently, there is absolute non-compliance with the provisions of Section 42 of the NDPS Act and in view of Constitution Bench judgment of the Apex Court in case of Karnail Singh (supra), the conviction of the appellant would clearly be unsustainable on this ground alone. 23. Thus, taking into consideration the facts and circumstances of the case as discussed, hereinabove, I am of the view that the prosecution has failed to prove its case beyond reasonable doubts. Accordingly, the impugned judgment of conviction dated 28th April, 2011 and the order of sentence dated 3rd May, 2011 are set aside. Since the appellant is in jail, he is directed to be released forthwith, if not required in any other case.