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2013 DIGILAW 63 (PAT)

Asharfi Choudhary v. State of Bihar

2013-01-11

AMARESH KUMAR LAL, V.N.SINHA

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JUDGMENT (Per: HONOURABLE MR. JUSTICE V.N. SINHA) 1. Heard learned counsel for the appellant and the State. 2. Appellant has challenged judgment dated 11.3.2011/order dated 18.3.2011 passed by Additional Sessions Judge-VII, Patna in Special Case No. 29/2009, whereunder appellant has been held guilty for the offence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the “Act”) and sentenced to undergo R.I. for 15 years with fine of Rs.1,50,000/-, in default of payment of fine to undergo R.I. for further three years. 3. Appellant was apprehended along with two bags of Narcotic substance i.e. Ganja weighing 11 Kg. each on 6.4.2009 at about 9 P.M. while he was travelling in a three-wheeler bearing Registration No. BR-16M-1311 at the new bypass road, Patna in Village- Marcha-Marchi by the Officer-in-Charge of Bypass P.S. as the Officer-in-Charge having received confidential information that contraband narcotic was being transported on a three-wheeler had gone to Village Marcha-Marchi. Having identified, searched the three-wheeler the Officer-in-Charge found the Narcotic concealed in the rear of the three-wheeler drew his self statement on 6.4.2009 at 21 hrs. and seized the concealed contraband narcotic i.e. ganja in two bags weighing 11 kg. each and the three-wheeler bearing Registration No. BR-16M-1311 vide seizure-list drawn on 6.4.2009 at 21.30 hrs. The seized narcotic, the three-wheeler and the appellant were taken to the Bypass Police Station by the Officer-in-Charge and Bypass P.S.Case No. 25/09 dated 6.4.2009 was registered against the appellant for the offence under Section 20/22 of the Act on 6.4.2009 at 22.15 hours on the basis of self statement and the seizure-list earlier drawn by the Officer Incharge and appointed Sri Ganesh Singh as Investigating Officer of the case. 4. Having seized the contraband the Officer-in-charge prepared the seizure memo of the seized narcotic and the I.O. investigated the case by recording the statement of the members of the search party as also by visiting the place of occurrence i.e. in front of Marchi Dharamshala and having obtained report from the Director, Forensic Science Laboratory, submitted charge-sheet finding the offence under Sections 20 and 22 of the Act to be true against the appellant. 5. During trial the prosecution examined six witnesses:- P.W.-1 Mahesh Kumar Officer-in-Charge of Bypass Police Station on whose self statement and on the basis of the seizure made by him the present case was registered. 5. During trial the prosecution examined six witnesses:- P.W.-1 Mahesh Kumar Officer-in-Charge of Bypass Police Station on whose self statement and on the basis of the seizure made by him the present case was registered. P.W.-2 to 4 are the members of the raiding party. P.W.-5 Chandra Prakash Chandra A.S.I. is the officer, who recorded the self statement of the informant and in whose presence seizure-list was drawn after weighing of the sealed packs. P.W.-6 is Ganesh Singh, the I.O. of the case. 6. In the light of the evidence of the prosecution witnesses, P.W.1 to 6 the trial court recorded the judgment of conviction holding the appellant guilty of the offence under Section 20(b)(ii)(c) of the Act and sentenced the appellant to undergo R.I. for 15 years with fine of Rs. 1,50,000/-, in default of payment of fine to serve another term of R.I. for three years. 7. Learned counsel for the appellant has assailed the aforesaid judgment on the ground that the Officer-in-Charge, who seized the narcotic from the three-wheeler was not authorized to effect search, seizure of the narcotic from the three-wheeler as he is not an officer empowered under Section 42 of the Act. He further assailed the judgment on the ground that even assuming that Officer-in-Charge was authorized to effect search and seizure he has not observed the safeguards required to be observed before and after effecting search and seizure of the contraband in the light of the provisions of Sections 52, 55 of the Act. The samples of the contraband seized was not kept under seal by the Officer-in-Charge soon after it was seized on 6.4.2009 at 21.30 hrs. and sent for chemical examination by the I.O. under the authorization from the Special Court under Memo No. 1161 dated 20.5.2009 in response whereto the report from the Forensic Science Laboratory was received under Letter No. 521/09 dated 19.1.2010. It is also submitted that during trial the quantity which remained with the Officer-in-Charge or the I.O. after the samples were sent to the Forensic Science Laboratory was also not produced, as such, it is difficult to establish that the samples of contraband which was subjected to chemical examination is from the same pack which was seized by the Officer-in-Charge. It is also submitted that during trial the quantity which remained with the Officer-in-Charge or the I.O. after the samples were sent to the Forensic Science Laboratory was also not produced, as such, it is difficult to establish that the samples of contraband which was subjected to chemical examination is from the same pack which was seized by the Officer-in-Charge. Learned counsel for the appellant further submitted that as there has been considerable unexplained delay of more than one month in dispatch of the samples from the contraband seized to the Forensic Science Laboratory, it is difficult to ascertain and establish that the sample was sent to the Forensic Science Laboratory from the contraband seized on 6.4.2009 at 21.30 hrs. vide seizure-list, Exhibit-1. In this connection he also referred to the evidence of the Officer-in-Charge, who made the seizure and submitted that from the evidence of the Officer-in-Charge itself it will appear that after the seizure of the contraband the seized contraband was neither sealed nor any sample was prepared and thereby there has been clear violation of Sections 52 and 55 of the Act. He also referred to the evidence of P.W.-5, A.S.I. who assisted the informant in drawing his self statement as also in seizure of the contraband and was present at the time of seizure of the contraband narcotic and submitted that the witness has not stated that the contraband seized was either sealed or samples prepared and sealed in his presence. I.O. P.W.-6 has also not explained the delay of more than one month from 6.4.2009 which was made at his level in sending the samples to the Forensic Science Laboratory on 20.5.2009. 8. From the evidence noted and discussed above, it is quite evident that the contraband/Ganja seized on 6.4.2009 from three-wheeler bearing registration no. BR-16M-1311 in presence of the appellant was neither sealed nor samples were made on the date of seizure, as such, there has been a clear violation of the safeguards contained in Section 55 of the Act. Neither the Officer-in-Charge P.W.-1 nor P.W. 5 the A.S.I. who assisted the Officer-in-Charge in seizure nor the Investigating Officer-P.W.-6 has explained the delay of more than one month which was caused in sending the samples to the Forensic Science Laboratory. 9. Neither the Officer-in-Charge P.W.-1 nor P.W. 5 the A.S.I. who assisted the Officer-in-Charge in seizure nor the Investigating Officer-P.W.-6 has explained the delay of more than one month which was caused in sending the samples to the Forensic Science Laboratory. 9. From the evidence of the prosecution witnesses it is also not clear as to how the seized contraband was handled during the period between 6.4.2009 till 20.5.2009 when the seized contraband was kept in Malkhana of the Police Station. It is also not clear from the evidence of the prosecution that the samples sent for chemical examination was taken from the contraband seized in presence of the appellant. The safeguards provided under Sections 52 and 55 of the Act are necessary for being observed by the authority effecting seizure of the contraband or investigating the offence alleged under the Act as punishment under the N.D.P.S. Act is too severe. 10. Before parting with this judgment, we may indicate that the submission of the learned counsel for the appellant that Officer-in-Charge Bypass P.S. was not authorized to search the three-wheeler and seize the contraband found therein is misconceived in view of the notification of the Government bearing no. SO.880 dated 5.9.1988 which authorizes the Sub-Inspector to search and seize the narcotic found concealed. Having perused the materials brought on record, we are satisfied that the State police authorities manning the police stations are not well versed with the provisions of the Act and on account of their lack of knowledge of the provisions of the Act the purpose to contain the illegal trade in narcotic and psychotropic substance is flourishing in the State. To contain the same, it is necessary that the Director General of Police, Bihar should organize a training programme for the police officers serving at the police station, circle level at regular interval to acquaint them about the provisions of the Act. 11. In view of our findings above, the judgment/order dated 11.3.2011/18.3.2011 passed by Additional Sessions Judge-VII, Patna in Special Case No. 29/2009 is set aside, appellant Asharfi Choudhary is acquitted of the charge levelled against him and is directed to be set at liberty forthwith, if not wanted in any other case. 12. The appeal is, accordingly, allowed.