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2018 DIGILAW 1066 (PAT)

Munib Sah Barnwal v. State of Bihar

2018-07-12

ASHUTOSH KUMAR

body2018
JUDGMENT : ASHUTOSH KUMAR, J. 1. Heard learned counsel for the appellant and the State. 2. The appellant/Munib Sah Barnwal has been convicted under Sections 20 (B), 22, 23, 27(A) and 29 of the N.D.P.S. Act, 1985 by judgment dated 29.09.2016, passed by the learned IIIrd Additional District and Sessions, West Champaran, Bettiah and by order dated 01.10.2016, he has been sentenced to undergo RI for 10 years for each of the offences and to pay a fine of Rs. 1,00,000/- (one lakh) and in default of payment of fine, to further suffer simple imprisonment for one year each for all the offences. The sentences have however been ordered to run concurrently. 3. The basis of the prosecution case is the self-statement of Mukesh Kumar (P.W. 4), who has alleged that while checking the vehicles near the border of Nepal, one person who was coming on a motorcycle from the side of Nepal tried to run away. The aforesaid witness (P.W. 5), with the help of other police personnels, nabbed him and searched his person. On search, narcotic substances, kept in 17 packets and weighing 8 kgs, were found. The substance which was recovered appeared to be Charas. On further probe, the aforesaid person disclosed his name as that of the appellant and disclosed that the aforesaid consignment of Charas was brought from Nepal for the purposes of handing it over to one Munna Mian for its sale. A seizure list was prepared in front of two witnesses, who had arrived at the place of occurrence during the time of search and seizure and the appellant was thereafter arrested. 4. On the basis of the aforesaid self-statement, a case vide Kangali P.S. Case No. 38 of 2012, dated 30.07.2012 was instituted for investigation for offences under Sections 20(B), 22, 23, 27(A) and 29 of the N.D.P.S. Act, 1985. The police after investigation submitted charge-sheet whereupon cognizance was taken and the case was committed to the concerned Court for trial. 5. The Trial Court, after examining six witnesses on behalf of the prosecution, convicted and sentenced the appellant as aforesaid. 6. Mr. Bimlesh Pandey, learned Advocate appearing for the appellant has argued that from the evidence of the witnesses, no case under the aforesaid Sections of the N.D.P.S. Act has been made out. The reasons for saying so is that the so called seized narcotic was neither weighed nor sealed. 6. Mr. Bimlesh Pandey, learned Advocate appearing for the appellant has argued that from the evidence of the witnesses, no case under the aforesaid Sections of the N.D.P.S. Act has been made out. The reasons for saying so is that the so called seized narcotic was neither weighed nor sealed. For how long was it kept in the Malkhana is also not known. When the aforesaid consignment was brought to the Court during trial, there was no seal over it. There is no reference of any person having accepted the same and having kept in the Malkhana. He, therefore, submits that there is a complete violation of the provisions of Section 52 A of the Narcotic Drugs and Psychotropic Substances Act. He has further submitted that the seizure list witnesses, namely, P.W.s 1 and 2 have not supported the prosecution version, but they have not been declared hostile. In that view of the matter, their deposition has to be believed insofar as the recovery is concerned. The aforesaid two witnesses have stated that nothing was recovered from their possession and that they had signed the seizure list on the asking of the Police Officer. The other witnesses, it has been argued, have only tried to support the prosecution version, but their deposition lacks essential material particulars for the Court to convict the appellant under the aforesaid 7. Sections of the N.D.P.S. Act. 7. In order to appreciate the contention of the appellant, it would be relevant to go through the deposition of the informant- P.W. 5. He has reiterated the averments made in his self-statement and has stated that the occurrence is of the month of August in the year 2012. While he along-with other police personnel, on the orders of the superior police officer, was checking the vehicles near the Indo-Nepal Border, one person was seen coming from the side of Nepal on Motorcycle. He disclosed his name as that of the appellant. From beneath the seat of the vehicle 8 Kgs of Charas was recovered. A seizure list was prepared in front of two persons, who had arrived at the place of occurrence. In his cross-examination, however, he has not been able to tell the name of the police officer on whose orders he was checking the vehicle. From beneath the seat of the vehicle 8 Kgs of Charas was recovered. A seizure list was prepared in front of two persons, who had arrived at the place of occurrence. In his cross-examination, however, he has not been able to tell the name of the police officer on whose orders he was checking the vehicle. He has also admitted the fact that people from Nepal come to India through Ghodasahan Canal for shopping in Sikta Bazar. Though the aforesaid witness claims that the seized narcotic was weighed at the place of occurrence, but could not state as to wherefrom the weighing machine or weighing balance was brought. For the first time when the informant saw the appellant, he was at a distance of 50 feet. The place of occurrence is stated to be about 100 mtrs. from the Nepal border. 8. On specific question, the aforesaid witness has also stated that the plastic packets in which the narcotic was kept, was loaded on the police jeep in the same condition as it was seized. There was no other person Incharge of the Malkhana. After alighting from the jeep, the seized narcotic was given to the Incharge of the Malkhana, who kept it in the police station in the same condition. The witness had no idea as to when was the consignment sent to the Malkhana from the Police Station. Since the Investigating Officer was not part of the team of the informant, the aforesaid witness also did not know when the statement of the witnesses were recorded. The seized motorcycle, it has been admitted, is still lying in the police station. 9. The learned Advocate appearing for the appellant has submitted that in the absence of any definite proof of weighing the seized narcotic and sealing the same, no reliance could be placed on the deposition of the aforesaid witnesses for coming to the conclusion that the appellant was in possession of the seized narcotic. No sample appears to have been drawn at the spot. In the absence of the same being sealed, nobody has any idea as to how many times were those consignments handled and by whom. The seized narcotic was kept in the jeep without sealing and marking it and was given to the Incharge of the Malkhana. No sample appears to have been drawn at the spot. In the absence of the same being sealed, nobody has any idea as to how many times were those consignments handled and by whom. The seized narcotic was kept in the jeep without sealing and marking it and was given to the Incharge of the Malkhana. When was it taken from the police station to Malkhana and for how many days it was kept, is also not known. Under such circumstances, it will be difficult to, it has been argued, place any reliance on the fact that the consignment of narcotic which was brought before the trial court was the same which was seized from the possession of the appellant. 10. As stated earlier, Radha Yadav and Dipu Kumar Patel who have been examined as P.W.s 1 and 2, are seizure-list witnesses. Though they have identified their signature on the aforesaid document (Seizure List Exhibit - 1/1), but they have denied to have witnessed the search and seizure in their person. Both the aforesaid witnesses have spoken of having appended their signature on the seizure list on the asking of the Police Officer. 11. Munna Kumar, a Constable, who was part of the raiding team, has been examined as P.W. 3. Though he has supported the prosecution version in his examination-in-chief, but has stated that the appellant was seen for the first time at the distance of about 300 yards. When the appellant tried to run away towards Nepal side, he was caught after hot chase. He has also stated in his cross Patna examination that the seized narcotic was weighed in the police station but had no idea wherefrom the weight balance was brought. 12. Learned counsel for the appellant, therefore, has submitted that the aforesaid witness has made a different statement than what P.W. 5 has stated about the weighing of the narcotics. From the deposition of the aforesaid witness, it also comes to the fore that there could be a possibility of the appellant having been arrested/nabbed by the police party on mistaken identity. It has further been submitted that had the motorcycle been of the appellant, some effort would have been made by either the appellant or somebody-else in whose name the motorcycle was registered, to have the same released. Till the time of deposition of the witnesses, the motorcycle was lying in the police station. It has further been submitted that had the motorcycle been of the appellant, some effort would have been made by either the appellant or somebody-else in whose name the motorcycle was registered, to have the same released. Till the time of deposition of the witnesses, the motorcycle was lying in the police station. 13. Similar statement has been made by Amod Kumar, another Constable, who has only stated about recovery of 8 kgs of Charas from beneath the motorcycle seat of the appellant. But he has stated that he was never examined by the police during the course of the investigation. The distance of the place where the recovery was made from Nepal was stated to be 200 meters by the aforesaid witness. The search and recovery was made at about 9 o'clock in the morning and according to P.W. 4, apart from the vehicle of the appellant, no other vehicle crossed through that road. 14. On the basis of the aforesaid statement, the learned counsel for the appellant has submitted that this also buttresses the contention of the appellant that his arrest could be on mistaken identity. 15. Now, to put the final nail in the coffin, the Investigating Officer, namely, Sidheshwar Prasad Verma, who has been examined as P.W. 6, has testified to the fact that the seized article was sent to the FSL on 28.08.2012, after obtaining the permission of the learned District and Sessions Judge, Bettiah. Be it noted that the narcotic was seized on 30.07.2012 and was kept in either police station or the Malkhana for about a month. It was only thereafter, that the same was sent to the FSL for ascertaining the contents. In the absence of the seal over the seized narcotic or proper sampling of the same, the FSL report (Exhibit-5) looses all its sanctity. The sample was received in the FSL on 24.08.2012, which fact is evident from the perusal of Exhibit-5, which is the report of the FSL. The column in the aforesaid report, regarding the mode in which the parcel was found to be packed on receipt and the description of seal, has been left completely blank. The sample was received in the FSL on 24.08.2012, which fact is evident from the perusal of Exhibit-5, which is the report of the FSL. The column in the aforesaid report, regarding the mode in which the parcel was found to be packed on receipt and the description of seal, has been left completely blank. In that event it has been argued that the report of the FSL that the seized article was Charas, which is also known as Hashish and which is the resinous exudates of the flowering and fruiting tops of the female plant of cannabis-sativa containing Tetra Hydro Cannabinol (T.H.C.) cannot be accepted as the same substance which was seized from the possession of the appellant. The standing instructions issued by the Narcotic Control Bureau also does seem to have been complied with. 16. Thus from the prospectus of the deposition of the aforesaid witnesses, the prosecution case becomes highly doubtful. 17. It has been held several times by the Apex Court as well as by this Court that harsher the punishment in an Act, stricter is the requirement for the proof of the same. The provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 is very strict and harsh and, therefore, this Court will never brook of any departure from the Rules made therein. Such blatant violation of the mandatory provisions of the Act, therefore, have rendered the impugned judgment and order of conviction highly suspect. 18. For the aforesaid reasons, this Court has no option but to set aside the judgment and order of conviction. 19. The appeal is allowed. 20. The appellant is in CUSTODY. He is directed to be released forthwith from jail, if he is not required in any other case. 21. A copy of the judgment is transmitted to the Superintendent of the concerned Jail for information, compliance and records.