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2014 DIGILAW 1174 (PAT)

Mukesh Sah v. The State Of Bihar

2014-11-27

GOPAL PRASAD

body2014
JUDGMENT Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. The appellant has been convicted under Sections 20(b)(ii)(c), 22(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as, ‘the Act’) and has been sentenced to undergo rigorous imprisonment for ten years with a fine of rupees one lakh an in case of non-payment of fine, further, to undergo simple imprisonment for two years. 3. The prosecution case, as alleged in the first information report, by the informant, Krishna Kant Bharti, Rail Police, Narkatiyaganj, that while he was on patrolling and reached platform no. 2 got a secret information that a person has come in the Bus Stand and he has article of theft in his bag. He proceeded for verification and reached from platform no. 3 to 4, saw one person sitting on platform no. 6 and on seeing him he started fleeing away recklessly towards platform no. 2, he was chased and caught hold while he concealed himself behind the Automated Teller Machine and in presence of independent witnesses the person disclosed his name as Mukesh Sah and on search of his person nothing was recovered and on search of bag in his hand fourteen packets of charas in yellow plastic bags were recovered. On enquiry he did not produce any paper about charas and he was asked whether he will like to make statement before a Magistrate or not, he disclosed hat the statement made before him regarding charas shall also be disclosed to Magistrate. The said packets were weighed and alleged charas found to be seven kilogram. The seizure list was prepared in accordance with law and the witnesses signed and put their thumb impressions and Mukesh Sah also singed and gave his thumb impressions and disclosed that he used to do the business of charas along with Yado Singh and, further, disclosed that Yado had brought charas and has disclosed that he has to sell it in Punjab. 4. On the written report of the Station Head Officer, Rail Police, Narkatiyaganj, the first information report lodged and investigation proceeded. After investigation the charge sheet submitted, cognizance taken, thereafter, the charge is framed. 5. 4. On the written report of the Station Head Officer, Rail Police, Narkatiyaganj, the first information report lodged and investigation proceeded. After investigation the charge sheet submitted, cognizance taken, thereafter, the charge is framed. 5. During the trial ten witnesses were examined in the case, who are P.W. 1, Sita Ram Sahni, P.W. 2, Radha Sharma, P.W. 3, Rajendra Sah, P.W. 4, Indrajeet Sharma, P.W. 5, Gona Lal Yadav, P.W. 6, Harendra Singh, P.W. 7, Babban Singh, Constable No. 475, P.W. 8, Ravindra Kumar Pandey, P.W. 9, Kishore Yadav, and P.W. 10, Krishna Kand Pandey. 6. The documentary evidence adduced are Exhibit 1, signature of Harendra Singh on seizure list, Exhibit 2, search and seizure list, Exhibit 3, fardbeyan, Exhibit 4, formal first information report, Exhibit 1/1 signature of P.W. 8 on seizure list, Exhibit ½ signature of witnesses on seizure list, Exhibit 5, the first information report, Exhibit 6, signature of P.W. 10 on seizure list, Exhibit 7, formal first information report and Exhibit 8, the charge sheet. 7. The trial Court, after taking into consideration the oral and documentary evidence that seven kilogram of charas was seized from the possession of the appellant and the Forensic Science Laboratory’s report shows that the seized article was charas, convicted and sentenced the appellant, as mentioned above. 8. The learned counsel for the appellant, however, contends that there is non-compliance of Sections 42, 50, 52, 55 and 57 of the Act. It is stated that the safeguard provided under Section 50 of the Act has not been complied though it is stated in the first information report, itself, that on secret information, the police proceeded and on having caught hold of the appellant searched his body, but, there is no mention that safeguard provided under Section 50 of the Act was complied with for his option of his personal search before a Magistrate. It has, further, been contended that the article seized were not properly sealed and there is no evidence that the sample was taken from each of the packets of charas alleged to have been seized from the possession of the appellant and if the charas was not taken from each of the packets, it is difficult to say that from other packets sample was taken or not and it has, further, been submitted that there is neither certification of the article seized by a Magistrate in accordance with Section 52(A) of the Act nor the article seized has been produced before the Court, hence, it is submitted that the order of conviction and sentence recorded against the appellant is not sustainable. 9. The learned counsel for the State, however, opposed the prayer and submits that the order of conviction and sentence recorded by the trial Court is sustainable. There is ample evidence regarding the recovery of the article seized and, thus, sample taken sent to the Forensic Science Laboratory, Patna, which reported that it is charas. 10. However, taking into consideration the respective submissions, the question for consideration to prove the prosecution by cogent, reliable and unimpeachable evidence is that the police on some information proceeded and apprehended the appellant, the person of the body of the appellant was searched and, thereafter, from his bag in his hand fourteen packets of charas recovered to the extent of seven kilograms. However, the witnesses supported the prosecution case regarding the recovery of charas from the bag which were in possession of the appellant. However, the witnesses though have stated that the charas was seized and seizure list was prepared with regard to charas and the said article was weighed and P.W. 9 supported the prosecution case that seven kilograms of charas in fourteen packets have been recovered from the bag of the appellant and seizure list prepared. He has stated that the seized charas has not been produced before the Court and he does not know whether the charas seized has been kept in malkhana of the nearest Police Station or not, though he claimed to have sealed the seized article. However, in cross examination he has also stated that 100 grams sample was sent for examination. He has stated that the seized charas has not been produced before the Court and he does not know whether the charas seized has been kept in malkhana of the nearest Police Station or not, though he claimed to have sealed the seized article. However, in cross examination he has also stated that 100 grams sample was sent for examination. However, in his entire evidence he has not stated whether he took the charas as sample from each of the packets nor has stated that how much sample was taken though stated that 100 grams sample was sent for examination. There is no certification of the articles seized as per Section 52(A) of the Act nor the sample was taken in presence of the Magistrate nor the photographs of drugs, substance and certifying such photographs as true has been filed nor the article has been presented in Court, hence, there is total non-compliance of Section 52(A) of the Act nor there is compliance of Section 55 of the Act as there is no evidence of affixing the seal on seized article or to make sample or sealing of the sample in compliance of 55 of the Act. There is, further, non-compliance of Section 57 of the Act as there is no evidence that after person arrested and seizure made he shall forthwith within 48 hours of such arrest and seizure make full report to his immediate officer superior. 11. Hence, taking into consideration, the circumstance though it is stated that the article was seized from the bag, containing in his hand, however, to that extent there is no compliance of Section 50 of the Act. However, it is stated in the first information report, itself, that on his apprehension his body was searched, but, there is no mention about the compliance of Section 50 of the Act about making him aware of his right to be searched before a Magistrate, personal search having been made, hence, the safeguard provided under Section 50 of the Act has not been complied. It is true that gunny bag from which charas was recovered, compliance of Section 50 of the Act is not required, but, the moment the prosecution party proceeded to search made of his person, compliance of Section 50 of the Act is required, hence, non-compliance of Section 50 of the Act is mandatory. It is true that gunny bag from which charas was recovered, compliance of Section 50 of the Act is not required, but, the moment the prosecution party proceeded to search made of his person, compliance of Section 50 of the Act is required, hence, non-compliance of Section 50 of the Act is mandatory. The entire prosecution case suffers from defects, hence, the order of conviction and sentence is not sustainable. However, this view has been substantiated in the decision reported in 2014(2) B.B.C.J., 240 (State of Rajasthan Vrs. Parmanand & Anr.). In that case a person carrying a bag was apprehended and his person personal search conducted even after recovery of charas in bag and no reasoning in his part, but, it has been held that Section 50 of the Act will have application. Here the person was searched and, thereafter, the bag was also searched and from the bag charas recovered though no recovery from is person, hence, in view of the decision report in 2014(2) B.B.C.J., 240 (supra) the non-compliance of the safeguard provided to aware him of his right to be searched before a Magistrate or gazetted officer and, hence, violation as Section 50 of the Act is applicable. 12. The next point for consideration that there is non-compliance of Section 52A of the Act. The charas was recovered and sent to the Forensic Science Laboratory, Patna, however, it is stated that fourteen packets of charas was recovered, but, it has not been mentioned that the sample was taken from each of the packets though it is stated that the sample was sent to the Forensic Science Laboratory, but, it has not been mentioned that from which of the seized packets the sample was taken, whether taken from each of the packets and there is neither any certification by a Magistrate nor it is stated that sample taken was given the seal of the Officer-in-Charge of the Police Station nor there is any certification of the correctness of the inventory prepared nor the photographs of such drugs and substance and certifying such photographs as true has been produced nor the article has been produced in Court, hence, non-compliance of Sections 52A, 55 and 57 of the Act caused prejudice. It true that Sections 52, 55 and 57 of the Act are not mandatory, but, has bearing on appreciation of evidence and if prejudice has been shown, then, consequence is graver. 13. Having regard to the fact that there is no mention that the sample was taken from each of the packet or the sample taken from each packets and, further, there is no mention that the sample taken bear the seal of the Officer-in-Charge of the Police Station or not, hence, and, further, the non-compliance of Sections 52, 55 and 57 of the Act has graver consequence and has got bearing on appreciation of evidence regarding arrest and seizure. Hence, having regard to the facts and circumstances of the case that non-compliance of Sections 52, 55 and 57 of the Act caused prejudice to the accused, more over, there is violation of Section 50 of the Act as mentioned above, which is mandatory, hence, the order of conviction and sentenced, recorded by the trial Court is not sustainable, hence, the order of conviction and sentence is hereby set aside and the appeal is allowed. Appeal allowed.