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2018 DIGILAW 215 (PAT)

Bharat Bhagat v. State of Bihar

2018-01-31

ARVIND SRIVASTAVA, RAKESH KUMAR

body2018
JUDGMENT : ARVIND SRIVASTAVA, J. 1. Heard Sri Akhileshwar Prasad Singh, learned Senior counsel assisted by Sri Ranjeet Kumar Pandey, learned counsel appearing for the appellant and Sri Ajay Mishra, learned Additional Public Prosecutor, appearing for the State. 2. This appeal has been filed against the judgment of conviction dated 19.09.2013 and order of sentence dated 21.09.2013 passed by Sri Dinesh Prasad Singh, Additional Sessions Judge-I-cum-Special Judge, N.D.P.S. Act, Gopalganj in Sessions Trial No. 56 of 2011 arising out of Kuchaikote P.S. Case No. 16 of 2011, whereby the appellant has been convicted under Sections 20 and 22 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the N.D.P.S. Act) and sentenced to undergo rigorous imprisonment for 15 years as well as to pay fine of Rs. 1 Lakh. The appellant has further been sentenced to undergo simple imprisonment for one year, for each of the conviction under sections 20 and 22 of the N.D.P.S. Act, in case of default in payment of fine. 3. The facts of the case, in short, is that on 26.01.2011 at 6:30 P.M. Sri Sachiv Niwas Roy, Sub-Inspector of Kuchaikote P.S. (PW-8), recorded his statement at the door of the appellant in Village-Hemebardaha, Mishri Tola, that on the same day, at about 3:30 P.M. the informant (PW-8) along with other Police Officials had proceeded for evening patrolling from the Police Station and in course of patrolling at about 6:30 P.M. the informant is said to have reached near cinema hall. It is said that the informant received confidential information about existence of heavy amount of Ganja, having been kept illegally in the house of the appellant and if immediate search is conducted, the same can be recovered. The informant, thereafter, informed the higher Police Officials in writing and also tried to contact the Magistrate, to whom he could not contact. Suspecting the attempt for removable of Ganja, informant is said to have proceeded for search without any search warrant. The informant reached near the house of appellant at 6:00 P.M. and in presence of two independent witnesses, namely Babban Singh (PW-1) and Jagdish Pandey (PW-2), the informant inquired from the appellant about the Ganja and further whether he would like to be searched by the Police or in presence of Magistrate. The appellant replied that the search may be made by the Police itself. The appellant replied that the search may be made by the Police itself. Thereafter, on search, 13 bundles of Ganja were recovered from a hutment, which was concealed in straw. On inquiry, the appellant could not furnish any satisfactory explanation nor could produce any valid documents. Thereafter, on weighing, it was found that each bag contained 12 kg. of Ganja, totaling 156 kg. It is further alleged that two samples, each weighing 250 gms. were prepared, having been marked as S-I and S-II and the same were sealed in presence of said seizure witnesses. Signatures of seizure witnesses are said to have also been taken on the seal of the sample. The Ganja allegedly recovered was also sealed and seizure list was prepared. A copy of the seizure list is said to have been given to the appellant. The informant has further alleged that in view of recovery of alleged Ganja, having been kept for smuggling and/or sale, the appellant was liable for prosecution under sections 8, 21, 22 of the N.D.P.S. Act. The appellant was, accordingly, taken into custody and brought to Kuchaikote Police Station. 4. On the basis of the aforesaid self-statement of the informant (PW-8), a formal First Information Report was drawn up and Kuchaikote P.S. Case No. 16 of 2011 was registered on 26.01.2011 at about 9:00 P.M. in which the appellant was made accused. After investigation, Charge-sheet No. 14 of 2011 was submitted on 23.03.2011 and he was, accordingly, sent up for trial for the offences punishable under sections 8, 21, 22 of the N.D.P.S. Act. Thereafter, charges were framed against the appellant on 08.05.2012 for the offences punishable under sections 20 and 22 of the N.D.P.S. Act, to which the appellant pleaded not guilty. 5. During trial, the prosecution has examined altogether 8 witnesses. Babban Singh (PW-1) and Jagdish Pandey (PW-2) were alleged seizure witnesses, who were declared hostile, as they have denied any seizure made in their presence and they have said that their signatures were not taken at the place of seizure; rather the same were obtained at the Police Station. Santosh Kumar Singh (PW-3) and Amit Kumar Singh (PW-4) were SAP Constable and Probationer Sub-Inspector of Police respectively. They claimed to have participated in the alleged search and seizure. Santosh Kumar Singh (PW-3) and Amit Kumar Singh (PW-4) were SAP Constable and Probationer Sub-Inspector of Police respectively. They claimed to have participated in the alleged search and seizure. Ramakant Singh (PW-5) is the Sub-Inspector of Police of Kuchaikote Police Station and he is also Investigating Officer in spite of being party to the alleged search and seizure. Munna Kumar (PW-6) is the Sub-Inspector of Police, who also claimed having participated in the alleged search and seizure. Ravi Shankar Prasad (PW-7) is also a Police Personnel, who has proved Forensic Science Laboratory Report, as Ext. 2, although he is not an employee of the Forensic Science Laboratory. Sachiv Niwas Roy (PW-8) is the informant of this case. 6. The prosecution, in order to prove the charges levelled against the sole appellant, has proved the signatures of the seizure list witnesses, as Exhibits-1 and 1/1. Apart from this, the prosecution has also proved the report of the Forensic Science Laboratory and the self-statement (fardbayan) of the informant, as Exhibit Nos. 2 and 3. 7. The appellant in his statement under Section 313 of the Code of Criminal Procedure has denied the evidence and has claimed himself to be innocent. He has not advanced any defence on his behalf. 8. In the present appeal, the impugned judgment of conviction and the order of sentence has been challenged mainly on two grounds, i.e. the prosecution has not been able to establish the place of occurrence and the seizure. 9. Sri Akhileshwar Prasad Singh, learned Senior counsel assisted by Sri Ranjit Kumar Pandey, learned counsel for the appellant submits that the prosecution has failed to establish the place of occurrence fromwhere the seizure has been made. Learned counsel submits that there is serious contradiction in the statements of the witnesses with regard to the place of occurrence as in the F.I.R. it has been mentioned as a West facing hutment inside the house of the appellant. PW-3 has stated that it is a hutment left to the road and the house is situated on the right side of the road. PW-4 has stated that it was a hutment open from the front in the courtyard. PW-5 has stated that it is a hutment in the eastern side of the road. Towards East of the hutment, appellant’s semi constructed pukka house is situated. Palani was open. PW-4 has stated that it was a hutment open from the front in the courtyard. PW-5 has stated that it is a hutment in the eastern side of the road. Towards East of the hutment, appellant’s semi constructed pukka house is situated. Palani was open. PW-6 has stated that the hutment is situated adjacent to the pukka house, having boundary wall of straw. The door was West facing and the same was open. PW-8, informant, has stated that the hutment was situated in the Northern corner of the courtyard, which was having boundary walls. Two sides of the boundary walls were of bricks and the other two sides were of straw. Palani was open from all sides. 10. Learned counsel further submits that the prosecution has failed to establish the seizure, as there is serious contradiction in the statements of the witnesses with regard to the seizure. At the time of seizure, 10 persons were present, out of which, 6 were examined. PW-3 has stated that 12-13 packets of Ganja totaling to 156 kgs. was recovered. Ganja was kept in red polythene. Ganja was weighed by Jamadar and the same was taken to Police Station. PW-4 stated that 13 packets of Ganja totaling to 156 kgs. was recovered, which was weighed by Sachin Niwas Roy. The sample about 250 grms. per bundle was taken from each packets. PW-5, Investigating Officer, has deposed that measurements of 5, 10 and 15 kgs. were used and the sample of 100 grms. of Ganja was taken from one or two bundles. PW-6 has stated that three samples were prepared, which were sealed. For weighing, measurements of 5, 10, 1 and 2 kgs. were used. It was weighed by Sachiv Niwas Roy (PW-8), who is the informant, has deposed that two packets of samples were prepared. He is silent about the weight of the samples. Seizure List was prepared by Hridyanand Singh. Measurements of 5, 2, 1 kgs. and 500 grms were used. It was weighed by Hridyanand Singh. Ganja was kept in blue coloured bundles. Bundles of the Ganja or the samples were not sealed at the place of occurrence. 11. Further learned counsel submits that from the above, it is apparent that the statements on the point of measurements used for weighing the seized Ganja are contradictory. It was weighed by Hridyanand Singh. Ganja was kept in blue coloured bundles. Bundles of the Ganja or the samples were not sealed at the place of occurrence. 11. Further learned counsel submits that from the above, it is apparent that the statements on the point of measurements used for weighing the seized Ganja are contradictory. If the statements of PW-5 is taken to be true, then it is not understandable as to how 12 kgs. of Ganja was weighed by the measurements of 5, 10 and 15 kgs. Further PW-6 has said that measurements of 5, 10, 2 and 1 kgs. were used then how samples of 250 grms. of Ganja were prepared. There is apparent improvement/contradiction in the statements of the witnesses. 12. Further submission is that Hridayanand Singh, who is alleged to have weighed the seized Ganja and further prepared the seizure list, has not been examined by the prosecution. From the statement of Ramakant Singh (PW-5), it seems that he was present at the place of occurrence, but he took the charge of investigation of the case on 26.01.2011 at 9:00 P.M. whereas the F.I.R. was lodged at 6:00. He also stated that seized Ganja has been weighed in Police Station, whereas it has been specifically mentioned by the informant in the F.I.R. that the seized Ganja was weighed at the place of occurrence. 13. Mr. Ajay Mishra, learned Additional Public Prosecutor has opposed the appeal and supported the judgment of conviction and order of sentence. He submitted that all the material witnesses have supported the factum of recovery of Ganja from the house of this appellant. 14. Considering the facts and circumstances of the case, the materials available on records and the submissions advanced on behalf of the parties, this Court finds that the submissions advanced by the learned counsel for the appellant has substance. There is serious contradiction in the statements of the witnesses on the point of place of occurrence and the seizure. Learned counsel has categorically pointed out the contradictions in the statements of the witnesses to which this Court also agrees. Besides the above points of contradictions, we find some other lacuna in present prosecution. In this case, seizure was made on 26.01.2011 and samples of the seized articles were sent to the Forensic Science Laboratory on 18.02.2011, which was received there on 10.03.2011. Besides the above points of contradictions, we find some other lacuna in present prosecution. In this case, seizure was made on 26.01.2011 and samples of the seized articles were sent to the Forensic Science Laboratory on 18.02.2011, which was received there on 10.03.2011. The period in between has not been explained by any of the witnesses, as to how the safety and security of seized articles were maintained. Further the Report of the Forensic Science Laboratory has been proved by a formal witness, but the scientist, who prepared the report, has not been examined. Furthermore, the seized Ganja was not produced before the Court. 15. Besides the above, Sections 52A(2) and 55 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the “Act”) have not been complied with. Sections 52A(2) and 55 of the aforesaid Acts reads as under: “Section 52A(2) - Where any narcotic drugs, psychotropic substances, controlled substances or conveyances 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 referred to in sub-section (1) shall prepared an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of narcotic drugs, psychotropic substances, controlled substances or conveyances 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 identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances 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. (b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true. (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. (b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true. (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 - Police to take charge of articles seized and delivered- An office-in-charge of the police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer, who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” 16. In the present case right from the beginning when the Ganja was recovered, F.I.R. instituted and charge-sheet submitted, there has been repeated and flagrant violation of the aforesaid provisions of the Act. On account of such violations, the conviction of the appellant cannot be considered sustainable and legal. 17. In view of the above discussions, the judgment of conviction dated 19.09.2013 and order of sentence dated 21.09.2013 passed by Sri Dinesh Prasad Singh, Additional Sessions Judge-I-cum-Special Judge, N.D.P.S. Act, Gopalganj in Sessions Trial No. 56 of 2011 arising out of Kuchaikote P.S. Case No. 16 of 2011, is hereby, set aside and the appeal is allowed. Since the appellant is in custody and judgment of his conviction and sentence has been set aside, it is, hereby, directed to release him forthwith, if not wanted in any other case. I agree – Rakesh Kumar, J. Appeal allowed.