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2014 DIGILAW 482 (PAT)

Bhikhar Ram v. Union of India

2014-04-22

ADITYA KUMAR TRIVEDI

body2014
JUDGMENT : ADITYA KUMAR TRIVEDI, J.:–Sole appellant, Bhikhar Ram who has been found guilty for an offence punishable under Section 29 of the NDPS Act vide judgment dated 02.09.2011 and sentenced to undergo R.I. for 10 years as well as fined Rs.1,00,000/- in default thereof to undergo R.I. for 2 years and 6 months vide order of sentence dated 14.09.2011 passed by Additional Sessions Judge-Ist-cum-Special Judge, NDPS, East Champaran, Motihari in ND P.S. Case No. No.16 of 2007 filed instant appeal. 2. On getting confidential information with regard to smuggling of Ganja on 20.02.2007, PW-3, Irfan Ahmad a member of preventing team of custom along with others including two independent witnesses rushed to Nanaura village and in the morning of 21.02.2007 at about 05:45 A.M. they intercepted one tractor along with trailer laden with stone chips. During course thereof, the other manage to escape while one was apprehended who disclosed his identity as an appellant, Bhikhar Ram and further shown his status as labour-cum-cleaner. It has further been disclosed that on query, appellant had disclosed that trailer contains Ganja having concealed beneath stone chips illegally carried from Nepal. Then, thereafter, the tractor along with trailer was taken to Custom Office, Motihari with the help of local driver and was searched out and during course of which 130 packets of Ganja weighing 1100 Kg. appertaining to Rs.2,20,000/- was seized therefrom. It has further been disclosed that neither tractor nor trailer contained registration number. On the basis of the aforesaid search memo appellant was forwarded to custody. After investigation complaint was filed by PW-3 on 31-07-2007 where upon fifteen witnesses were examined along with different exhibits and then thereafter appellant met with ultimate result, subject matter of instant appeal. 3. The defence case as is evident from mode of cross-examination as well as from the statement of appellant under Section 313 of the Cr.P.C. is of complete denial of occurrence. It has further been submitted that he has been falsely implicated in this case being resident of Nepal. 4. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellant that apart from inconsistencies persisting in the prosecution case, the learned lower court overlooked the same and in mechanical way had convicted the appellant. It has further been submitted that he has been falsely implicated in this case being resident of Nepal. 4. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellant that apart from inconsistencies persisting in the prosecution case, the learned lower court overlooked the same and in mechanical way had convicted the appellant. It has further been submitted that at an initial stage charge was framed against the appellant under Section 20(b), 29 of the NDPS Act, however got acquitted under Section 20(b) of the NDPS Act. Therefore, the learned lower court should have considered that in the aforesaid background neither there was reliable evidence to identity the appellant as an abettor or conspirator. It has further been submitted that from the evidence of the witnesses, it is evident that they are not at all consistent over timing of conduction of raid as well as manner whereunder appellant was apprehended. Then it has been submitted that during conduction of trial, the prosecution had flouted mandatory provision of NDPS Act as a consequence thereof, the conviction and sentence recorded by the learned lower court happens to be unjustifiable. 5. At the other hand, the learned Additional Public Prosecutor while supporting the prosecution case submitted that seizure of tractor along with trailer is found conclusively proved and in similar way happens to be the recovery of Ganja in such huge quantity. On account thereof, the search and seizure could not be said to be fake. It has also been submitted that there happens to be consistent version of the prosecution witnesses regarding apprehension of appellant at the spot and that being so, his complicity with the crime happens to be. However, the learned trial court had taken into consideration the status of the appellant and on account thereof, convicted him under Section 29 of the NDPS Act. 6. As stated above, altogether fifteen witnesses have been examined in support of prosecution case along with Exhibit-1-Seizure list, Ext. 1/1 to 1/3- Signature of witnesses, Ext.-2- Punchnama, Ext.-2/1 to 2/3-Signature of witnesses thereupon, Ext.-3 – Inculpatory statement, Ext.3/1 to 3/4- Signature of respective witnesses, Ext.-4- Chemical Examination Report, Ext.-5- Statement of Bhikhar Ram, Ext.-5/1 to 5/3- Signature of witnesses, Ext.-6- Memo of arrest, Ext.-7 – Complaint Application, Ext.-8 – Order of Special Judge, Ext.-9- Certification of seized Ganja, Ext.-10- Order of Special Judge, Ext.-11- Destruction list. 7. 7. From the complaint petition, para-4, it has been disclosed that seeing the Uniform Officers the driver stopped the tractor 20-25 yards before the officer and jumped along with the person sitting behind him and tried to flee away. The custom officers chased them and caught one of the person who introduced himself as labour-cum-cleaner of the tractor and trailer. PW-1, Superintendent had stated in examination-in-chief that they have seen one tractor along with trailer coming at about 05:45 A.M. over which his inspector and sepoy gone along with torch. Till then one person escaped from tractor while another was apprehended who disclosed his name as Bhikhar Ram. During cross-examination at para-6 he had said that he had not gone over road where tractor was apprehended. Persons accompanying him had chased and apprehended. Irfan Ahmad had disclosed that two persons were over tractor. Sepoy has apprehended Bhikhar Ram at village-Nanaura. PW-2 had stated that they flashed torch after coming over road. Tractor stopped 20-25 yards ahead. Driver along with one person escaped therefrom who were chased. One person was apprehended who disclosed his identity as Bhikhar Ram. In para-12, he had stated that when tractor stopped, two persons escaped therefrom out of whom one was apprehended. PW-3 had stated that two persons escaped after stopping the tractor at a distance of 25 yards out of whom one manage to escape while other was apprehended who disclosed his identity as Bhikhar Ram. During cross-examination at para-7, he had admitted that in arrest memo he had mentioned the fact as 21.02.2007 at about 08:00 P.M. In para-7, he had stated that two persons escaped from the tractor just after perceiving signal to stop. PW-4 had stated same version during his examination-in-chief but in cross-examination at para-4, had stated that he is unable to say how many persons were over tractor. He had further stated that they had chased 15-20 meter and then apprehended one of them. PW-5 in examination-in-chief had stated same version while in para-3 had stated that he is unable to say how many persons were sitting over tractor and trailer. In para-4 he had stated that Bhikhar Ram was apprehended after 10-12 step chase but who had apprehended him he is unable to say. PW-6 had reiterated the same version during his examination-in-chief. PW-5 in examination-in-chief had stated same version while in para-3 had stated that he is unable to say how many persons were sitting over tractor and trailer. In para-4 he had stated that Bhikhar Ram was apprehended after 10-12 step chase but who had apprehended him he is unable to say. PW-6 had reiterated the same version during his examination-in-chief. However, during cross-examination at para-3 he had stated that he is unable to say who had apprehended Bhikhar Ram. 8. PW-7 had reiterated the version under examination-in-chief but in para-2 of his cross-examination he had stated that four persons escaped from tractor. He was standing near jeep. He had not gone near the tractor. Tractor along with Bhikhar Ram was brought near him. In para-4, he had stated that he had not apprehended. PW-9 reiterated the same version during examination-in-chief. During cross-examination at para-6, he had stated that 2-3 persons got down from tractor and ran away who were chased who were not apprehended. Bhikhar Ram was getting down from tractor in a way to run away therefrom but was apprehended. 9. PW-10 had stated in his examination-in-chief itself that one person who was sitting over tractor was apprehended. In para-6, he had stated that 2-3 persons caught hold him but he is unable to say who apprehended. 10. PW-11 had stated that 2-3 persons got down from tractor and escaped, out of him one was apprehended. At para-5, he had contradicted his own version stating the fact that one person was apprehended at the tractor itself. 11. PW-12, seizure list witness had disowned the apprehension of accused. 12. PW-13 had stated that one person was apprehended at the tractor itself. 13. PW-14 had stated that driver manage to escape while other was apprehended. 14. PW-15 is another witness who also disowned the apprehension of accused. 15. So from the aforesaid evidence, it is evident that all the witnesses although claimed to be part and parcel of raiding party but were not consistent over manner of apprehension of appellant whether he was apprehended at the tractor or on chase and on account thereof, their claim to have presence at the site being member of raiding party because doubtful. 16. The next theme happens to be with regard to sampling. In complaint petition, PW-3 had not claimed that he had performed job of sampling. 16. The next theme happens to be with regard to sampling. In complaint petition, PW-3 had not claimed that he had performed job of sampling. In para-12 of the complaint petition, he had mentioned the fact that three representations samples were drawn before the two independent witness and the accused for chemical test and sent to Government Opium and Alkaloid Works Gazipur (U.P.) and in their test report they have confirmed that the seized goods was Ganja. PW-1, during cross-examination at para-7 had stated that he was not present at the time of seizure. He had not put signature of Panchnama which was prepared in his presence. Sample was not prepared in his presence as well as was not sent in his presence. So he is unable to say how the sampling was effected. PW-2 at para-1 of examination-in-chief had stated that three samples were prepared and sent to Gazipur for test. However, during cross-examination at para-13 had stated that sampling was done in presence of Superintendent, two inspectors, two witnesses and accused. Envelope was sealed. Signatures of all the persons were over the envelope but the same is found contradicted by PW-1, Superintendent. PW-3, the complainant had not stated during his examination-in-chief regarding preparation of sample. However, during cross-examination at para-6, he had stated that packet was opened in his presence as well as others. It was weighed in his presence. Only one packet was opened. Again corrected rest 129 packets were also opened. Subsequently all were tied sample was kept in an envelope and sealed. Sample was sent to Gajiabad without taking permission from the court. PW-4 had not spoken with regard to process of sampling during course of his examination-in-chief however during course of cross-examination at para-5, he had stated that the process of seizure was not taken up at Ghorasahan. Packets were not sealed at Ghorasahan. Some samples were taken out from the seized article. Sample was taken out from one packet in presence of two seizure list witness and then sample was sealed. PW-5 had not spoken during his examination-in-chief however in para-4 of his cross-examination had stated that sample was not prepared in his presence. PW-6 had not spoken during his examination-in-chief. During course of examination at para-3 he had stated that Ganja was packed in a packet which was not opened in his presence. PW-5 had not spoken during his examination-in-chief however in para-4 of his cross-examination had stated that sample was not prepared in his presence. PW-6 had not spoken during his examination-in-chief. During course of examination at para-3 he had stated that Ganja was packed in a packet which was not opened in his presence. PW-7 neither in his examination-in-chief nor in his cross-examination had stated. PW-9 remained silent on this very score during his evidence and that happens to be the status of the PW-10, PW-11. PW-12 also had not spoken with regard to sampling and in likewise manner happens to be the evidence of PW-13, 14 and 15. 17. During course of evidence neither sample has been produced nor the material exhibit. To explain same, PW-8 Incharge of godown has been examined who had exhibited the destruction report. PW-8 had not stated that during course of destructing the seized Ganja its sample was preserved. 18. Section 52(A) of the NDPS Act speaks about destruction of Ganja or any hazardous substance so seized and for that laid down specific procedure. Its violation will jussively affect upon the prosecution case. For better appreciation Section 52(A) is quoted below:— [52A. Disposal of seized narcotic drugs and psychotropic substances.— (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the Officer-in-charge of the nearest police station or to the officer empowered under section 53 the officer refereed to in sub-section (1) shall prepared an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identify of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section(2) and certified by the Magistrate, as primary evidence in respect of such offence]. 19. The aforesaid event has been perceived by the Hon’ble Apex Court adverse to the prosecution as held in Vijay Jain Vs. State of Madhya Pradesh reported in (2013) 14 SCC 527.— “9. Para 96 of the judgment of this Court in Noor Aga case [(2008) 16 SCC 417] on which the learned counsel for the State very strongly relies is quoted hereinbelow: (SCCp.464) “96. Last but not the least, physical evidence relating to three samples taken from the bulk amount of heroin was also not produced. Para 96 of the judgment of this Court in Noor Aga case [(2008) 16 SCC 417] on which the learned counsel for the State very strongly relies is quoted hereinbelow: (SCCp.464) “96. Last but not the least, physical evidence relating to three samples taken from the bulk amount of heroin was also not produced. Even if it is accepted for the sake of argument that the bulk quantity was destroyed, the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52-A of the Act.” Thus, in para 96 of the judgment in Noor Aga case [(2008) 16 SCC 417] this Court has held that the prosecution must in any case produce the samples even where the bulk quantity is said to have been destroyed. The observations of this Court in the aforesaid paragraph of the judgment do not say anything about the consequence of non-production of the contraband goods before the court in a prosecution under the NDPS Act. 10. On the other hand, on a reading of this Court’s judgment in Jitendra Vs. State of M.P. [ (2004) 10 SCC 562 ], we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok Vs. Again, in Ashok Vs. State of M.P. [ (2011) 5 SCC 123 ] this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its non-production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.” 20. Now coming to the evidence right from the complaint petition, none of the prosecution witness had stated that after receiving the confidential information, immediately superior officer was ever informed. To explain this point, it looks better to delve upon evidence of PW-1 as well as PW-3. PW-1 is the Superintendent. From para-1 of his examination-in-chief, it is evident that he had received information on 20.02.2007 at 08:00 P.M. from Ghorasahan that Ganja is going to be transported over tractor laden with stone chips. He was called upon and then raiding party was constituted and then he proceeded. After arriving at Ghorasahan he met with Irfan Ahmad, Inspector and then thereafter raiding party was prepared consisting officials of Motihari as well as Ghorasahan. He had not disclosed that just superior officer was ever informed nor he stated that being superior officer, he was informed. On the other hand, from his evidence it transpire that he acted during course of raid as a member of raiding party. PW-3, the complainant during course of his examination-in-chief, had stated that after receiving confidential information he took help from Motihari Custom Division. A raiding party was constituted wherein K.K. Upadhayay, Sanjeev Kumar, B.K. Choudhary, M.S. Beg, Naurangi Chaudhary along with others apart from him were members. But never spoke about informing just superior officer regarding the event. 21. Section 42 of the NDPS Act did put an obligation to inform the immediate official superior to him at maximum period so prescribed within time of 72 hours in terms of Section 42(2). For better appreciation the same is quoted below:— “42(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior”. 22. Requirements of Section 42 have been subject to adjudication before Constitutional Bench, in Karnal Singh Vs. 22. Requirements of Section 42 have been subject to adjudication before Constitutional Bench, in Karnal Singh Vs. State of Haryana reported in 2009 CR.L.J. 4299 and it has been concluded under para-17 as follows:— “17. 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 move 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. 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. 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.” 23. Because of the fact that due to non-compliance of mandatory provision of law, the trial has become spiteful and on account thereof, prosecution became frustrated. Consequent thereupon, the conviction and sentence recorded by the learned trial court is set aside. Appeal is allowed. Appellant is under custody, hence is directed to be released forthwith, if not wanted in any other case.