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2014 DIGILAW 765 (PAT)

Umesh Manjhi v. Union of India

2014-07-11

GOPAL PRASAD

body2014
RESERVE JUDGMENT Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the Union of India. 2. These two appeals have been heard together and disposed of by the common order as both arise out of the common judgment passed by Sri Shambhu Nath Tiwari, learned 6th Additional Sessions Judge, Muzaffarpur in Trial No. 06 of 2011 arising out of Custom Case No. 05 of 2003-04 by which the appellants have been convicted under Sections 20(b)(ii)C of the Narcotic Drugs and Psychotropic Substances Act and to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- (one lack) and in default of payment of fine the defaulting convicts have further to undergo rigorous imprisonment for two years with further direction that the period already undergone as under trial prisoner will be set off as per law. 3. The case proceeded on the complaint of one Sri Basant Kumar Singh, Inspector, Customs Division, Muzaffarpur. 4. The prosecution case as alleged in the complaint is that on secret information about a trafficking of Ganja a team was constituted and rushed to Taraiya Nahar (Canal) on 10.04.2003. On 11.04.2003 at about 0455 hours, as sound of motorcycle was heard followed with an appearance of a motorcycle on the spot and a call was given to stop the motorcycle. The person driving the motorcycle stopped and tried to turn motorcycle backwards but having found that they were surrounded by the raiding party the two persons on motorcycle, i.e., the driver and the pillion rider tried to flee away. However, both were caught after chase. The pillion rider was caught on chase of about 10 meters and the person driving the motorcycle was caught on chase of 200 meters. The motorcycle was found to be Rajdoot bearing Reg. No. BR04A/7753. The goods loaded on motorcycle appeared to be Ganja and it was disclosed by the accused persons who were apprehended that they were taking Ganja on motorcycle from village Bishambhara, P.S. – Harsiddhi, Distt. East Champaran to village Laganpura of P.S. Bheldi. 5. The motorcycle was found to be Rajdoot bearing Reg. No. BR04A/7753. The goods loaded on motorcycle appeared to be Ganja and it was disclosed by the accused persons who were apprehended that they were taking Ganja on motorcycle from village Bishambhara, P.S. – Harsiddhi, Distt. East Champaran to village Laganpura of P.S. Bheldi. 5. However, having regard to the fact that the place where the motorcycle was apprehended was a remote area and taking also into consideration the sensitivity of offence, both the apprehended persons and the goods were brought to the Customs Divisional Officer, Muzaffarpur and in presence of two independent witnesses the Ganja recovered was weighed and found to be 50 Kgs and thereafter seizure list prepared and out of the said seized Ganja three representative samples of the Ganja of 50 Grams each were also drawn in presence of Panchas. The statement of Munshi Rai and Umesh Manjhi were also recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act. They confessed that the Ganja belonged to one Shri Gangdayal Rai, Son of Sri Hira Rai, P.S. Bheldi who was the owner and the financier of the Ganja and the said motorcycle belonged to Sri Bharat Rai, Son of Sri Gangdayla Rai. Munshi Rai further stated that owner of Ganja, Shri Gangdayal Rai used to purchase Ganja from Nepal and used to get it transported into India through labourers upto village Bishambhra and from there he used to get it transported to village Laganpura by motorcycle through these accused. So both the persons found in possession of the said Ganja seized and prosecution launched on the complaint dated 25.05.2003. 6. The complaint was filed before the C.J.M. which was sent to the Court of Sessions and the cognizance has been taken for the offence under Sections 20, 23 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985. However, subsequently Gangdayal Rai was arrested but Bharat Rai remained absconding and after exhausting process under Sections 82 and 83 of the Cr.P.C., the case of Bharat Rai was separated by order dated 07.12.2007 and the case proceeded against three accused persons, Munshi Rai, Umesh Manjhi and Gangdayal Rai. Subsequently, Gangdayal Rai died and his case abated. 7. However, the case proceeded like a warrant case and the order dated 19.05.2008 shows that the examination of Basant Kumar Singh as witness no. Subsequently, Gangdayal Rai died and his case abated. 7. However, the case proceeded like a warrant case and the order dated 19.05.2008 shows that the examination of Basant Kumar Singh as witness no. 1 and cross-examination before charge has been done. During examination, seizure list as Ext. 1, Panchnama as Ext. 2, self statement of Munshi Rai as Ext. 3, self statement of Umesh Manjhi as Ext. 4, interrogatory statement of Munshi Rai as Ext. 5, interrogatory statement of Umesh Manjhi as Ext. 6, complaint petition as Ext. 7 and examination report as Ext. 8 have been marked. Thereafter the statement of P.W. 2, P.W. 3, P.W. 4 and P.W. 5 were taken before charge and thereafter charge was framed on 22.04.2010 for the offence under Sections 20(b) (ii)C, 23 and 25 of the Narcotic Drugs and Psychotropic Substances Act. Thereafter, after charge witnesses were cross-examined as P.W. 1 Basant Kumar Singh, P.W. 2 Sanjeev Kumar, P.W. 3 Amar Singh, P.W. 4 Sushil Kumar Singh and P.W. 5 Madhesh Kumar. 8. However, during the pendency of appeal Gangdayal Rai reported to have died and death certificate filed on which a report was called for from the concerned officer In-charge separating the case of Gangdayal Rai for trial by order dated 15.10.2010. 9. Thereafter the case of the two accused Munshi Rai and Umesh Manjhi proceeded after framing charge on 22.04.2010. Thereafter the witnesses were cross-examined after charge adopting the proceeding under Chapter XIX of the Cr.P.C. However, subsequently by order dated 07.05.2012, it is apparent that in course of argument it was submitted on behalf of the accused persons that the case is triable by Court of Sessions but the proceeding required to be followed for the trial as contained in Chapter XVIII of the Code of Criminal Procedure but since the case has been tried and in accordance with the procedure contained under Chapter XIX part B of the Code of Criminal Procedure it was submitted that Chapter XIX is applicable to the trial of warrant cases by Magistrate and not by the Court of Sessions and hence, the entire trial is vitiated and no finding of guilt or innocence could be legally recorded on such trial in view of the judgment reported in 2011 (1) PLJR 624. Hence, a direction was given for a de novo trial and the learned Special Public Prosecutor directed to produce the witnesses 1 to 5 for their fresh examination and then the witnesses were examined afresh as P.W. 1 Basant Kumar Singh, P.W. 2 Sanjeev Kumar, P.W. 3 Madhesh Kumar. One witness examined on behalf of the defence as D.W. 1 Vakil Ray and the documents were proved. The seizure memo as Ext. 1, Panchnama as Ext. 1/1, voluntary statement of accused Munshi Rai as Ext. 2, voluntary statement of accused Umesh Manjhi as Ext. 2/1, interrogatory statement of accused Munshi Rai as Ext. 3, interrogatory statement of accused Umesh Manjhi as Ext. 3/1, signature on complaint petition as Ext. ½ and expert report as Ext. 4 have been marked. Hence, the complaint case and the trial court taking into consideration the evidence on behalf of prosecution on defence under Sections 20(b) (ii) C, 23 and 25 of the Narcotic Drugs and Psychotropic Substances Act and sentenced as mentioned above and held that Sections 23 and 25 of the Narcotic Drugs and Psychotropic Substances Act is not applicable acquitting them for offence under Sections 23 and 25 of the Narcotic Drugs and Psychotropic Substances Act. 10. Learned counsel for the appellants, however, contended that there is allegation that the two appellants were apprehended and a gunny bag containing Ganja in plastic packets have been recovered but neither the seizure list prepared nor the Ganja was weighed at the place of occurrence. Learned counsel for the appellants, further, contended that 14 witnesses have been cited as witnesses in the complaint out of which only three witnesses have been examined. There is no signature of Umesh Manjhi on the seizure memo and no seizure list witnesses have been examined to say the presence of the appellant Umesh Manjhi and others. Learned counsel for the appellants, further, contended that 14 witnesses have been cited as witnesses in the complaint out of which only three witnesses have been examined. There is no signature of Umesh Manjhi on the seizure memo and no seizure list witnesses have been examined to say the presence of the appellant Umesh Manjhi and others. There is no mention about the number of packets of Ganja found in the gunny bag neither there is any mention of the weight of each packets of the Ganja found in the gunny bag i.e. there is no mention that Ganja alleged to have been contained in plastic bag was weighed separately nor the number of packets have been mentioned nor there is any mention that sample was taken from each and every packet of Ganja seized though it has come in evidence that from the gunny bag eight packets of Ganja was seized but there is no mention that how many numbers of Ganja packets in plastic bags were found in the gunny bags. The only evidence is that Ganja was taken out as sample from only three plastic packets but the weight of three plastic packet has not been mentioned. However, it has come in evidence that 50 gram of Ganja were taken separately from three separate packets but there is no mention of the weight of each packet and from those three representatives samples were prepared each containing 50 gram of Ganja and out of which one was sent for chemical examination. However, the report of the chemical examination has been proved as Ext. 4 as well as Ext. 8, hence, it is submitted that since there is neither mention the number of packets found in the gunny bag containing Ganja nor it is mentioned the separate weighed of Ganja found in each packet and 50 gram of Ganja was taken out of only from three packets, in that circumstance it is difficult to say that whether the other packets in the gunny bag contained Ganja or not as the Ganja were not taken from each of the packets found in the gunny bag and when the weighed of each packets have not been mentioned. It is also difficult to say whether the material found in gunny bag were Ganja having 50 Kgs and it is difficult to say that it was whether in small quantity or in commercial quantity or in between small and commercial quantity and hence, contended that the conviction recorded by the trial court under Section 20(b)(ii)C of the Narcotic Drugs and Psychotropic Substances Act suffers from illegality as this aspect has not been considered. It has further been contended that one of the accused Munshi Rai has remained in jail since date of arrest in 2003 whereas the appellant Umesh Manjhi has remained for jail for more than one year while granted bail in 2004 on 09.08.2004 having been arrested on 11.04.2003 and after conviction on 05.06.2012 has been taken into custody from the date of conviction and hence, have remained in jail. 11. Learned counsel for the State, however, contended that both the appellants have been apprehended with Ganja and the Ganja was recovered from their possession in gunny bag and the witnesses have proved by legal and cogent evidence. Though the Ganja was recovered from the gunny bag in plastic packets which was weighed and found to be of 50 Kgs and out of the Ganja contained in plastic packets kept in gunny bag a sample was taken from three packets and were found to be Ganja in chemical analysis with forensic report then the prosecution has well proved the case with reasonable ground and hence, the conviction is required to be maintained. 12. On respective submission by the parties, question for consideration whether the prosecution has proved the charges beyond reasonable doubt that the appellants were in possession of Ganja in commercial quantity, however, case proceeded for de novo trial as mentioned above and three witnesses were examined. The witnesses have supported the prosecution case that the prosecution party apprehended two accused persons coming on motorcycle. They started fleeing away and both were apprehended and the motorcycle was seized and a gunny bag containing Ganja in plastic packets were recovered at the place where the accused persons were apprehended. However, the two accused persons and the Ganja packets were taken to the Custom Office where the Ganja were weighed. The three witnesses have been examined in the case. However, the two accused persons and the Ganja packets were taken to the Custom Office where the Ganja were weighed. The three witnesses have been examined in the case. P.W. 1 is the informant and in his statement in paragraph 22 it is stated that the Ganja was seized in presence of the accused persons. However, he stated that there is no signature of Umesh Manjhi on the seizure list. He has further stated that after seizure immediately the sample was prepared. He has further stated that the sample was taken from three plastic packets to the tune of 50 grams each and the Panchnama was prepared at the time where the sample was taken. In paragraph 18 of the evidence, P.W. 1 has stated that altogether eight packets were seized. He further said that he cannot say that what amount of Ganja was contained in each packet. He has further stated in paragraph 24 of the evidence that separate weight of each packet were not taken. However, in paragraph 2 of his evidence he has stated that the recovered Ganja was weighed 50 Kg. He has further stated in his cross-examination that out of the seized packets he took out 50 gram Ganja each from only three packets and prepared sample in three packets, each packet containing 50 gram Ganja but in his further cross-examination in paragraph 24 he has stated that he had taken only 10 gram from each three packets of the Ganja seized to the extent of 30 grams. Hence, it is pertinent to mention here that earlier this witness was examined before charge in this case and in that statement he has deposed that he had taken only 10 grams Ganja from each of the three packets and so taking out only 30 gram of Ganja for sampling. Hence, his evidence of taking 50 gram from each three packets is in contradiction of his earlier statement before court for which there is no explanation. The weight of the three packets has also neither been taken separately or jointly. 13. Hence, having regard to the fact that Ganja was recovered from a gunny bag kept in a plastic packets though said to have weighed 50 Kgs. The weight of the three packets has also neither been taken separately or jointly. 13. Hence, having regard to the fact that Ganja was recovered from a gunny bag kept in a plastic packets though said to have weighed 50 Kgs. but there is no mention about number of packets in each packet kept in gunny bag nor mention the weight of each packet separately and hence, it is difficult to say exactly what amount of Ganja were found in the three packets from which specimen was taken. Though it has been stated that only eight packets were seized. P.W. 1 has stated that he cannot say how many packets were there in the gunny bag. It has further come in the evidence that Ganja was taken out from only three plastic packets. However, the weight of each packet has not been taken though it is stated that 50 grams of Ganja were taken each of the three packets and three representative samples were prepared of 50 grams each and one of the sample was sent to the forensic science laboratory. The report of the Forensic Science Laboratory has been shown as Ext. 8 which shows a plastic packet containing 42.08 gram of Ganja. The criticism is that 50 grams was sent in sample packet but the Forensic Science Laboratory mentions only 42.08 gram of Ganja found in packet, however, the circumstance about the deficiency in the packets is not material as the difference of few gram cannot be taken as mathematical precision. 14. The criticism is that 50 grams was sent in sample packet but the Forensic Science Laboratory mentions only 42.08 gram of Ganja found in packet, however, the circumstance about the deficiency in the packets is not material as the difference of few gram cannot be taken as mathematical precision. 14. However, it is pertinent to mention that Sections 55 and 57 of the Narcotic Drugs and Psychotropic Substances Act mentions about the disposal of the seized narcotic drugs and psychotropic substances which provides that where the narcotic drugs and psychotropic substances have been seized after seizure be forwarded to the Officer-in-Charge of the nearest police station or to the Officer empowered under Section 53 of the Narcotic Drugs and Psychotropic Substances Act or Officer referred to in sub-section 1 of Section 52A of the Narcotic Drugs and Psychotropic Substances Act shall prepare 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 officers referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs and psychotropic substances ..... 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. Section 55 of the Narcotic Drugs and Psychotropic Substances Act provides that police to take charge of articles seized and delivered and Section 57 of the Narcotic Drugs and Psychotropic Substances Act provides that whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. 15. 15. However, it is apparent that only three witnesses have been examined and in their evidence they have specifically stated that a gunny bag was seized from the accused persons which contained Ganja in several plastic packets and he seized eight packets containing Ganja but he cannot say that how many plastic packets of Ganja were there in the gunny bag and hence, apparently he has not mentioned the number of plastic packets filled with Ganja were found in the gunny bag. Though he has stated that he seized eight packets but he did not weight the eight packets of Ganja separately. He has further stated that he took out sample from only three plastic packets, 50 gram each as sample and did not weight the each packet. Hence, it is apparently the procedure adopted is clear violation of procedure prescribed in the instruction or direction and is against the fair play. The Panchnama Ext. 1/1 mentions Ganja 50 Kgs. but does not mention about the number of packets it contained nor mention the weight of each packet nor mention the sign on those packets and hence, is clear violation of Section 57 of the Narcotic Drugs and Psychotropic Substances Act. 16. Hence, as the Ganja was not taken out from each of the eight seized plastic packets out of the several packets seized from the gunny bag it is difficult to say that all eight packets contained Ganja and at best it can only be said that the three packets from which Ganja was taken as sample contained Ganja and is violation of Sections 55 and 57 of the Narcotic Drugs and Psychotropic Substances Act. 17. However, in the facts and circumstances of the case, since the sample was taken out only from three packets, it is difficult to hold that the other packets contained Ganja and further the weight of the three packets have also not been mentioned from which the Ganja was taken and hence, it is difficult to hold that the Ganja found with the accused persons were in small quantity or commercial quantity or in between commercial and small quantity. 18. However, the witnesses have examined and their statement recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act in which they have stated that they have been used in the trafficking of the Ganja. 18. However, the witnesses have examined and their statement recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act in which they have stated that they have been used in the trafficking of the Ganja. However, they have not mentioned in their statement about the weight of Ganja seized. 19. Having regard to the fact that though the non-compliance of Sections 57 and 55 of the Narcotic Drugs and Psychotropic Substances Act is not mandatory, however, it is valuable safe guard to same for appreciation of the evidence. 20. However, taking into consideration the fact that Ganja found in several packets but Ganja taken out from only three packets but the weight of each packet were not taken hence, it is difficult to say that how much Ganja was there in the three packets from which the sample was taken and in view of the statement/evidence of witness P.W. 1 that the Ganja were in the gunny bag contained in plastic packets and he did not count the number of packets and seized only eight packets out of which he took sample only from three packets without weighing the weight each of the packets or even the three packets and hence, it is difficult to say that what was the weight of the Ganja contained in the three packets and hence, it cannot be said that article seized were 50 Kg. Ganja and apparently the prosecution could not prove that the Ganja seized were in commercial quantity and hence, the conviction under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act is not sustainable. 21. However, having regard to the fact that the Ganja was seized and sample from three packets were taken and sent for examination and the report having been proved that the sample sent for examination was Ganja, the conviction can only be maintained in alternative either under Section 20(b)(ii)(A) or under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act as three packets from which Ganja was taken for sample, under the facts and circumstances of the case, cannot be said to contain the Ganja in commercial quantity but it can only be said either in small or in between small or commercial quantity, hence, the appellants can be convicted either under Sections 20(b)(ii)(A) or 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act. The appellant in Cr. The appellant in Cr. Appeal (SJ) No. 555 of 2012 Munshi Rai remained in jail since the date of occurrence and further the appellant of Cr. Appeal (SJ) No. 610 of 2012 Umesh Manjhi has remained in jail for about three years. 22. Hence, having regard to the facts and circumstances of the case as discussed above the conviction recorded under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act is hereby set aside and is substituted by conviction of the appellants under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act and sentenced for the period already undergone. The appeals are allowed in part. The appellant, namely, Munshi Rai is in jail custody. He is directed to be released forthwith, if not required in any other case. Appellant, namely, Umesh Manjhi is on bail. He is discharged from the liability of his bail bond.