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2013 DIGILAW 568 (PAT)

Sanjay Kumar Choubey v. State of Bihar

2013-04-30

HEMANT KUMAR SRIVASTAVA

body2013
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 filed on behalf of the sole appellant against the judgment of conviction and order of sentence dated 06.02.2001 passed by 3rd Additional Sessions Judge, Buxar in N.D. Case No. 10 of 1993 by which and whereunder he having found the appellant guilty for the offences punishable under Sections 20 (b) (ii) of N.D.P.S. Act, 1985 convicted him under the above said section and sentenced him to undergo rigorous imprisonment for ten years and a fine of rupees one lac was also slapped upon him. 3. In brief, the prosecution case, is that P.W.1, Rajbansh Singh prepared a written report on 30.07.1993 to this effect that to investigate Buxar Town P.S. Case No. 198 of 1993 dated 30.07.1993 and to verify the genuineness of sanha entry no. 859 of 1993 dated 30.07.1993, he along with S.I., Srikant Ram, S.I., Nirmal Kumar Singh, S.I., D. K. Mishra, Constable, Krishna Paswan, Constable, Hari Shankar Pandey and Driver, Sharwan Kumar Singh and Constable of the armed forces proceeded to Sohani Patti at about 05:15 P.M. and reached near the house of appellant at 05:30 P.M. The appellant, seeing the police party, fled into his house and after that the P.W.1 and other police officials in presence of two independent witnesses, namely, Shivji Singh and Ramesh Chandra Pandey entered the house of the appellant and searched the house. In course of search, P.W.1 arrested the appellant from a room of the house and made his personal search in presence of above stated independent witnesses and recovered 12 puriyas heroin kept in a plastic Chimki from his conscious possession. P.W.1 also searched the house of the appellant but nothing was recovered from his house. He prepared a seizure list in presence of the aforesaid independent witnesses who voluntarily put their signatures on the seizure list. The appellant did not give any satisfactory answer for keeping heroin with him nor produced any documents relating to the aforesaid seized heroin. 4. P.W.1 also searched the house of the appellant but nothing was recovered from his house. He prepared a seizure list in presence of the aforesaid independent witnesses who voluntarily put their signatures on the seizure list. The appellant did not give any satisfactory answer for keeping heroin with him nor produced any documents relating to the aforesaid seized heroin. 4. On the basis of aforesaid written report, being officer in charge of Buxar Town Police Station, P.W.1 himself registered Buxar Town P.S. Case No. 201 of 1993 under Sections 47 A of the Excise Act and 20(B) (i) of N.D.P.S Act, 1985 and handed over charge of investigation to one S.I, namely, Sri N. K. Singh. On the same day, formal first information report was prepared by P.W.1 against the appellant for the above stated offences and sent the formal first information report as well as written report to concerned Magistrate and the said formal first information report and written report were put up before the concerned Magistrate on 31.07.1993. The matter was investigated by the Investigating Officer and after completion of investigation, Investigating Officer submitted charge sheet for the offences punishable under Sections 47 A of the Excise Act and 20(b) (ii) of N.D.P.S Act against the appellant. On being receipt of the charge sheet, learned Sessions Judge, Buxar took cognizance and framed charge for the offence punishable under Section 20(b) (ii) of N.D.P.S Act against the appellant on 08.05.1995. The charge was read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. 5. In course of trial, prosecution examined, altogether, two witnesses and got exhibited written report as Exhibit-1 as well as seizure list as Exhibit-2. The statement of appellant was recorded under Section 313 of the Cr.P.C. in which he reiterated his innocence. Although, no evidence was adduced on behalf of the appellant in support of his defence but from perusal of statement of the appellant recorded under Section 313 of the Cr.P.C. as well as trends of cross examination of prosecution witnesses, it is apparent that the defence of the appellant was total denial of prosecution story. 6. The learned trial court having considered the materials available on the record convicted and sentenced the appellant in the manner as stated above. 7. 6. The learned trial court having considered the materials available on the record convicted and sentenced the appellant in the manner as stated above. 7. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and order of sentence arguing that P.W.1 completely ignored the mandatory provisions of law while making search and seizure. He pointed out that Exhibit-2, the seizure list, does not bear the signature of appellant which is violation of mandatory provision of Section 100 of the Cr.P.C. He further submitted that prosecution did not bring forensic science laboratory report on record and, therefore, it is apparent that prosecution could not succeed to prove this fact that heroin was recovered from possession of the appellant. He further submitted that Investigating Officer of the case was not examined by the prosecution in course of trial and non examination of the Investigating Officer caused serious prejudice to the appellant and, therefore, prosecution miserably failed to prove the charge framed against the appellant. 8. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence arguing that P.W.1 and P.W.2 clearly proved the seizure of heroin from possession of the appellant and, therefore, learned trial court rightly convicted and sentenced the appellant passing impugned judgment of conviction and order of sentence. 9. As I have already stated that only two prosecution witnesses have been examined, out of them P.W.1 is informant of this case and this witnesses stated that on 30.07.1993, he reached the house of appellant in connection with Buxar Town P.S. Case No. 192 of 1993 and arrested and searched the appellant. He further stated that in course of search, 10 gm. heroin kept in puriyas was recovered from the pocket of pant of the appellant whereas 2 gm. heroin kept in 2 puriyas was also recovered from possession of the appellant. He, specifically, stated in para 11 of his examination in chief that he prepared seizure list, took signatures of independent witnesses on the seizure list and handed over copy of seizure list to the appellant. 10. Here, I would like to refer Section 100 (7) of the Cr.P.C. which says that when any person is searched under sub-section (3), a list of all things taken possession of, shall be prepared, and a copy thereof shall be delivered to such person. This provision is mandatory in nature. 10. Here, I would like to refer Section 100 (7) of the Cr.P.C. which says that when any person is searched under sub-section (3), a list of all things taken possession of, shall be prepared, and a copy thereof shall be delivered to such person. This provision is mandatory in nature. Section 51 of N.D.P.S. Act, 1985 says that the provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. 11. From combined perusal of Section 100 (7) of the Cr.P.C. and Section 51 of N.D.P.S. Act, 1985, it is apparent that Section 100 (7) of the Cr.P.C. is applicable in the cases of N.D.P.S. Act because there is no inconsistent provision in the N.D.P.S. Act which makes the provision of Section 100 (7) of the Cr.P.C. non applicable in the cases of N.D.P.S. Act, 1985. Exhibit-2 reveals that signature of the appellant was not taken on the aforesaid Exhibit-2 and, therefore, it is apparent from the aforesaid fact that no copy of Exhibit-2 (seizure list) was handed over to the appellant after its preparation and, therefore, it is explicit clear that P.W.1 violated the mandatory provision of the law and, therefore, Exhibit-2 becomes doubtful. 12. P.W.1 has, nowhere, stated in his deposition as to what happened to the seized articles. This witness has only deposed before the trial court to this extent that he seized heroin from possession of the appellant and prepared seizure list. Therefore, it is clear that this witness could not say as to what steps were taken in respect of the seized articles. On being cross examined, he accepted this fact that on the basis of his experience he guessed that the seized article was heroin. 13. P.W.2 Dhirendra Kumar Mishra was member of raiding party. This witness stated that in connection with Town P.S. Case No. 158 of 1993 and sanha no. 859 of 1993 he along with others proceeded to Sohani Patti and the house of the appellant was searched and in course of search, appellant was arrested and when appellant was searched, heroin being 12 gm. was recovered from his conscious possession. This witness stated that in connection with Town P.S. Case No. 158 of 1993 and sanha no. 859 of 1993 he along with others proceeded to Sohani Patti and the house of the appellant was searched and in course of search, appellant was arrested and when appellant was searched, heroin being 12 gm. was recovered from his conscious possession. Although, this witness stated that copy of seizure list was handed over to the appellant but he admitted this fact that signature of the appellant was not taken on the seizure list. He also admitted this fact that recovered article was seized on the basis of suspicion. 14. On perusal of entire evidence available on the record, it is clear that prosecution could not succeed to bring on the record as to what happened to the seized articles. This evidence has also not come on the record as to whether the seized article was properly sealed or not and furthermore, whether the seized article was sent for chemical examination or not. Besides it, the seized article was not produced before the trial court in course of trial. Moreover, there is no report of forensic science laboratory and, therefore, in absence of any report of forensic science laboratory, it is very difficult to say that heroin had been recovered from possession of the appellant and, in my opinion, prosecution could not succeed to prove its case beyond all shadow of reasonable doubts and the learned trial court committed error in convicting and sentencing the appellant passing impugned judgment of conviction and order of sentence. 15. Thus, on the basis of aforesaid discussions, this criminal appeal is allowed and impugned judgment of conviction and order of sentence dated 06.02.2001 are, hereby, set aside. The appellant is on bail. He is discharged from the liabilities of his bail bonds.