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2014 DIGILAW 1159 (PAT)

Bindeshwar Ram v. state of Bihar

2014-11-21

GOPAL PRASAD

body2014
JUDGMENT : Gopal Prasad, J. Both these appeals have been heard together and are being disposed of by this order as both arise out of same judgment passed in special case no. 7 of 2009/Birpur P.S. Case no. 97 of 2009 by Sri K.G. Dwivedi, Additional Sessions Judge I-cum-Special Judge, Saharsa, by which the appellants have been convicted under Sections 20, 20(b) and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, ‘the Act’) and have been sentenced to undergo rigorous imprisonment for ten years under section 20(b) of the Act, ten years for offence under Section 23 of the act with a fine of rupees one lakh each for offence under Section 20(b) of the Act and fine of rupees one lakh each for the offence under Section 323 of the Act and in case of default in payment of fine, the appellants shall undergo rigorous imprisonment for three years. 2. The prosecution case, as alleged by the informant, Dinesh Kumar, Assistant Commandant of 18th Battalion, Sashastra Seema Bal, who was deputed along with other members of Sashastra Seema Bal for the vigilance at Indo-Nepal border, received secret information that huge of quantity of ganja is about to enter into the territory and, then, it was found that about 10-12 persons with plastics bag on their head coming towards Birpur and when they entered in the Indian territory, near pillar no. 206/04, they were surrounded and apprehended and they disclosed their names and the ganja was seized from their possession and seizure list prepared along with other articles. However, the production-cum-seizure list prepared with regard to all the persons and only one seizure list has been prepared. Nine gunny bags recovered from their possession were presented before the magistrate, which has been marked as exhibit 2. However, the recovery made from the possession of ten accused persons, apprehended, but, only one production-cum-seizure list has been prepared. 3. After fardbeyan, first information report has been lodged, investigation proceeded and charge sheet submitted. After submission of the charge sheet, cognizance taken and charge framed. 4. During the trial, ten witnesses were examined. P.W. 1 is Dinesh Kumar, the informant, P.W. 2 is Md. 3. After fardbeyan, first information report has been lodged, investigation proceeded and charge sheet submitted. After submission of the charge sheet, cognizance taken and charge framed. 4. During the trial, ten witnesses were examined. P.W. 1 is Dinesh Kumar, the informant, P.W. 2 is Md. Nezamuddin, who has proved the signature on the seizure list, P.W. 3 is Vipin Kumar Katara, a member of the raiding party, who has come to depose that the seized ganja weighed and eight packets contained 32 kg and one packet contains 16 kg and in all there was 272 kg of ganja. He has also deposed that the accused persons were also searched in person and he has, further, deposed that packets of ganja were weighed and again sealed in the same packet. P.W. 4 is Maqsood Alam Asharfi, officer-in-charge, Nauhatta police station and has stated that production-cum-seizure list was prepared by him and the seized article was sealed though have stated that he has not separately sealed the packets. P.W. 5, Ramveer singh, is constable and was member to the raiding party. P.W. 6 is Ramchandra Sah, who is a witness of the production-cum-seizure list. P.W. 7 is Suball Singh, Assistant Commandant, Sashastra Seema Bal, 18th Battalion, has come to depose that he handed over the seized article and the accused persons to the officer-in-charge. P.W. 8 is Krishna Lal, Sub Inspector of Police, member of raiding party. P.w. 9 is veer singh, havildar, posted in 18th Battalion of Sashastra Seema Bal and a member of the raiding party supported the case and seizure of ganja. P.W. 10 is Rajeshwar Prasad Singh, the investigating officer, and has come to depose that he has taken the sample for sending the forensic science laboratory. 5. The trial court after taking into consideration the evidence of the witnesses convicted the appellants and sentenced, as mentioned above, holding that section 50 of the act is not applicable in view of the fact that ganja was seized in gunny bag and was not being taken for person use. 6. The learned counsel for the appellants challenged the order of conviction and sentence on the ground that there is violation of section 42 of the act and there is allegation that on secret information the party proceeded, but, there is no mention that the information received was recorded and intimation was given to the superior officer. 6. The learned counsel for the appellants challenged the order of conviction and sentence on the ground that there is violation of section 42 of the act and there is allegation that on secret information the party proceeded, but, there is no mention that the information received was recorded and intimation was given to the superior officer. It has, further, been contended that the trial court misdirected itself in holding that the provision of section 50 of the act is not applicable. It has been contended that the prosecution case in the first information report as well as in the evidence that the accused persons were apprehended and the seizure of the ganja was made from the gunny bag kept on the heads of the accused persons. However, it has been asserted that after the recovery of the ganja from the bag, personal search of body of the appellants was also made, but, the accused persons were not made aware of their right to have searched before a gazetted officer. It has been contended that it is mandatory duty of the officer, conducting the raid to communicate the right of the accused to be searched before a magistrate, but, the existence of such right was not made aware to the accused persons, hence, there is violation of section 50 of the act. It has, further, been contended that there is no compliance of sections 52, 55 and 57 of the Act. It has been contended that ten persons were apprehended with an allegation that they were surrounded while they were having gunny bag on their head from which ganja were seized. The seizure list suggests that only nine gunny bags, the seizure list has not been prepared separately without any marking on the gunny bag that which of the accused was holding which of the packet rather a consolidated seizure list has been prepared, which mentions that nine bags were seized. There is no mention that out of ten accused, who out of them was not having ganja in gunny bags and there is no mention that which of the accused was not having packet and out of nine packets, eight contain two packets of ganja weighing about 32 Kg and one person had one gunny bag contains one packet with 16 Kg of ganja. It has, further, been contended that Section 52(A) of the Act as has not been complied. There is no certification of any Magistrate of those ganja nor the inventory of Narcotic Drugs and Psychotropic Substances was prepared in detail with a description of quality, quantity, mode of packaging, mark, number of identification has been prepared nor a photograph of such drug was taken nor the respective sample was taken before a Magistrate from the seized one. It has, further, been contended that the ganja was neither produced before the Court nor the certification of the Magistrate was ever produced or proved in evidence, hence, it gives a question mark about the search and seizure of the ganja and nor there is evidence that the articles seized were sealed with a seal of the Police Station or the seal of the Officer-in- Charge of the Police Station. 7. The learned counsel for the State, however, submits that the recovery has been proved and established by cogent and reliable evidence. The witnesses have supported the prosecution case that accused persons were apprehended and ganja was found on their heads, which was produced before the Officer-in-Charge by the informant, the Assistant Commandant, 18th Battalion, Sashastra Seema Bal, and production-cum-seizure list has been prepared. 8. However, taking into consideration, the respective submission so far the point taken for consideration, it is submitted that there is violation of Section 42 of the Act. However, there is secret information received about the transit of the ganja and the prosecution case apprehended and surrounded while the ganja was being carried by the persons. 9. Having regard to the fact that the ganja was recovered during the transit being carried away by the persons and the search and seizure was made at a public place while during transit so the recovery can well be said under Section 43 of the Act and the provision of Section 42 of the Act is not applicable as when the seizure effect in public place, hence, Section 42 of the Act becomes irrelevant and this view is taken in a decisions reported (2006) 9 S.C.C., 170 (Union of India Vrs. Major Singh & Ors.) and (2000) 2 S.C.C., 513 (Abdul Rashid Ibrahim Mansuri Vrs. State of Gujrat). 10. Major Singh & Ors.) and (2000) 2 S.C.C., 513 (Abdul Rashid Ibrahim Mansuri Vrs. State of Gujrat). 10. However, so far the violation of Section 50 of the Act is concerned, the allegation that the accused persons were surrounded with their gunny bags on their heads and ganja was seized from the gunny bags and to that extent Section 50 of the Act is not applicable. However, from the first information report, itself, it is apparent that after the recovery of gunny bags from the accused persons, the prosecution party proceeded from personal search of the accused persons several articles were recovered from the personal search, which are mentioned in the seizure list as well as in the first information report. P.W. 3, in his evidence, has also stated that the personal search of the accused persons was conducted. He has also stated that before the personal search they did not call any Magistrate and in paragraph 6 of the cross examination of the witness, P.W. 3 has supported that after apprehension of the accused persons with the gunny bag on their heads, the personal search was also made though it has been stated that on search of accused persons, no recovery of ganja was made. However, when there was a secret information that gang of activists or criminals are carrying ganja and on that secret information the persons were apprehended and from their possession ganja was recovered from the gunny bag over their heads, which was seized and subsequently the prosecution case that personal search on the person of accused made, but, there is no averment that they were made aware the accused of their rights to be searched by a gazetted officer and it was incumbent on the prosecution to have made them aware or communicated the accused persons of their right to be searched in presence of a Gazetted Officer or Magistrate and it was obligatory on the part of the prosecution or the officer conducting the raid to comply with the said provision and if the said provision has not been complied then there is violation of mandatory provision of Section 50 of the Act and this view is supported by a decision reported in 2014(2) B.B.C.J., 240 (State of Rajasthan Vrs. Parmanand & Ors.), hence, breach of Section 50of the Act vitiates the search and seizure, hence, order of conviction and sentence can not be sustained on this count alone. 11. However, the third point raised is the violation of Sections 50, 52 and 57 of the Act though the witnesses have stated that the article seized was sealed and the evidence on the sealing of the article is not systematic, but, there are evidence that the article, seized, kept in a Police Station in sealed cover, however, it has come that ten accused persons apprehended, but, only nine gunny bags of ganja was sealed and it is not mentioned that which bag was seized from which of the accused person and it is also not clear that who is the person with whom there was no gunny bag and out of nine gunny bags, eight contain two packets with 32 Kg of ganja and one gunny bag contains only one packet with 16 Kg of ganja, however, it is also not clear that which of the packet belonged to which of the accused and which one accused was not having ganja as out of ten only nine packets of ganja have been seized though the sample has been taken out and it is stated that sample was take from each of the packet, but, there is no mention that how much weight of the sample was taken from which of the packets and how much sample was taken or sent. In the Forensic Science Laboratory report also there is no mention that how much of the sample was received and there is no mention about the weight of the content in the sample. More over, there is no certification of the ganja by any Magistrate nor the ganja has been produced in Court nor there is certification by a Magistrate, hence, there is no compliance of Section 52(A) of the Act. 12. More over, there is no certification of the ganja by any Magistrate nor the ganja has been produced in Court nor there is certification by a Magistrate, hence, there is no compliance of Section 52(A) of the Act. 12. Having regard to the fact that the appeals have succeeded for non-compliance of Section 50 of the Act as the search made in prior without complying the safeguard of awarding the appellants of their right of being searched by a Magistrate nor there is compliance of Section 52 of the Act and the point has no much reliance that there is allegation that about 272 Kg of ganja was seized, neither the material having been produced in the Court nor there is certification of the Magistrate or anything to establish that ganja has been seized. 13. Hence, having regard to the fact that noncompliance of Sections 52, 55 and 57 of the Act and, further, for noncompliance of Section 50 of the Act, the order of conviction and sentence, recorded by the lower Court, is not sustainable and order of conviction and sentence recorded by the lower Court is hereby set aside and the appeals are allowed.