Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 2572 (JHR)

Kaleshwar Singh v. State Of Jharkhand

2018-11-27

KAILASH PRASAD DEO

body2018
JUDGMENT Kailash Prasad Deo, J. - Heard learned counsel for the appellant, Mr. N. K. Chatterjee, Advocate and learned counsel for the State, Mr. Pankaj Kumar, learned Additional Public Prosecutor. 2. The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence, both dated 05.04.2004 passed by the learned Additional Judicial Commissioner, Fast Track Court No.5, Ranchi, in Special Case No. 08 of 2001, whereby the sole appellant has been held guilty of the charge under Section 22 (a) of the Narcotic Drugs and Psychotropic Substance Act (N.D.P.S. Act) 1985 and awarded sentence of rigorous imprisonment for six months and fine of Rs.1,000/- and in case of default in payment of fine further sentenced to undergo rigorous imprisonment for one month. The period undergone shall be set off against the period of sentence awarded. 3. The prosecution case, is based upon, self statement of Officer-In-charge, Chutia Police Station, Saroja Nand Jha(P.W.1) recorded on 01.06.2001 at 17.15 hrs. at Patel Chowk, wherein the informant has stated that, today i.e. on 01.06.2001, he has received a confidential information that, Kaleshwar Singh is selling Ganja in his betel shop, situated near Patel Chowk and in order to verify the same, he along with Sub-Inspector , Ganesh Prasad(P.W.5), A.S.I., S. N. Mandal, (not examined) and constable no.759, Upendra Sharma (not examined), went to Patel Chowk and made a raid in the Gumti of accused, Kaleshwar Singh, in presence of two independent witnesses of the locality namely, Ravi Verma(P.W.3) and Umesh Kumar Rai (P.W.4) at 4.40 P.M. During search eight small polythene packets of Ganja containing 45 grams in total and four packets of cigarettes and out of them three contained 10 cigarettes each and one contained 6 cigarettes filled with Ganja were recovered from Betel shop of the accused, Kaleshwar Singh. The accused could not produce any license in proof of possessing the said contraband articles and a seizure list (Exhibit-1) was accordingly, prepared in presence of independent witnesses, who have put their signature on the same and a copy of seizure list was delivered to accused, who put his signature over it. Saroja Nand Jha, Officer-In-charge of Chutia Police Station has recorded his self statement at the place of occurrence. Thus, police instituted First Information Report bearing Chutia P.S. Case no. Saroja Nand Jha, Officer-In-charge of Chutia Police Station has recorded his self statement at the place of occurrence. Thus, police instituted First Information Report bearing Chutia P.S. Case no. 51 of 2001 dated 01.06.2001 under Section 22 of Narcotic Drugs and Psychotropic Substance Act (N.D.P.S. Act) 1985 against the accused, Kaleshwar Singh. The police took him in custody and A.S.I., S.N. Mandal was entrusted to make investigation of the case. 4. After investigation, the police has submitted charge sheet vide charge sheet no. 46 of 2002, dated 18.05.2002, under Section 22 of N.D.P.S. Act against the accused/appellant, Kaleshwar Singh. 5. The cognizance of the offence has been taken vide order dated 17.06.2002. 6. The learned trial Court has framed charge against the appellant, on 21.01.2003, under Section 22 of N.D.P.S. Act, to which the accused/appellant has pleaded his innocence and thus, he was put under trial. 7. The prosecution, in order to prove its case, has examined altogether five witnesses and also exhibited documentary evidence. The informant, Saroja Nand Jha, CID, Sub-Inspector of Chutia Police Station, has been examined as P.W.1, who has proved the seizure list in his handwriting, which has been marked as Exhibit-1 and the First Information Report in his handwriting and signature has been proved and marked as Exhibit-2, Gopal Jee Jha, Assistant, Director Forensic Science Laboratory, Ranchi, has proved a report of Forensic Science Laboratory, which has been marked as Exhibit-3, has been examined as P.W.2, Ravi Verma, a seizure witness and Umesh Kumar Rai another seizure witness, have been examined as P.W.3 and P.W.4 respectively and Ganesh Prasad, Sub-Inspector of police and a member of raiding party has been examined as P.W.5. 8. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr.P.C., on 23.02.2004, where appellant has denied about the occurrence and has stated that he has put his signature under duress of the police Officer on a blank sheet. The defence has also examined, three defence witnesses. Palan Singh has been examined as D.W.1, Tejnarayan Singh has been examined as D.W.2 and Devendra Singh has been examined as D.W.3. 9. The defence has also examined, three defence witnesses. Palan Singh has been examined as D.W.1, Tejnarayan Singh has been examined as D.W.2 and Devendra Singh has been examined as D.W.3. 9. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has covicted the appellant/accused under Section 22 (a) of Narcotic Drugs and Psychotropic Substance Act (N.D.P.S. Act) 1985 and awarded sentence of rigorous imprisonment for six months and a fine of Rs. 1,000/- and in case of default of payment of fine, further sentenced to undergo rigorous imprisonment for one month. Being aggrieved at and dissatisfied with the same, the present criminal appeal has been preferred by the appellant before this Hon''ble Court on 22.04.2004, which was admitted on 07.05.2004, and provisional bail granted to the appellant by the learned court below has been confirmed and thereafter, present criminal appeal is listed "For Final Hearing" before this Court. 10. Heard, learned counsel for the appellant, Mr. N. K. Chatterjee, Advocate. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has submitted, that the case in hand is a matter of special act and all the technicalities in the procedure has to be followed by the prosecution. Learned counsel for the appellant has further submitted, that prosecution has failed to establish that shop belongs to Kaleshwar Singh(appellant). Learned counsel for the appellant has further submitted, that seizure witnesses have not supported the prosecution case nor the seized material was produced in the court. Learned counsel for the appellant has further submitted, that seized material were never sealed by the police and it is very difficult to presume that, the expert opinion of the forensic science laboratory, which has been proved and marked as Exhibit-3, is related with the same seized material of the present case. Learned counsel for the appellant has further submitted, that sanction order has not been brought on record nor the seized material was sent for forensic examination after due permission from the learned court. Learned counsel for the appellant has thus submitted, that prosecution has miserably failed in proving the case against the appellant, as it has been observed by the Hon''ble Apex Court in case of Gorakh Nath Prasad Vs. Learned counsel for the appellant has thus submitted, that prosecution has miserably failed in proving the case against the appellant, as it has been observed by the Hon''ble Apex Court in case of Gorakh Nath Prasad Vs. State of Bihar as reported in , (2018) 2 SCC 305 , where in the Hon''ble Apex Court has acquitted the appellant as the seizure witness has turned hostile. Learned counsel for the appellant has drawn attention of this court towards, P.W.4, Umesh Kumar Rai, one of the seizure witnesses, who has turned hostile and Ravi Verma, another seizure witness, who has been examined as P.W.3 has also cast doubt about the authenticity of the seizure list. Learned counsel for the appellant has further drawn attention of this court towards the judgment in the case of Vijay Jain Vs. State of Madhya Pradesh as reported in , (2013) 14 SCC 527 , where the Hon''ble Supreme Court has acquitted the accused by the setting aside the conviction because of non production of seized material, as the sample of the seized material has not been proved before the Court, the appellant may be acquitted of the charge levelled against him. Learned counsel for the appellant has further submitted, that compliance of section 42 of the N.D.P.S Act has not been followed in letter and spirit as reported in Karnail Singh Vs State of Haryana , (2009) 8 SCC 539 . Learned counsel for the appellant has further submitted, that one of the police Officer, who was member of raiding party, S. N. Mandal, A.S.I. of police, being the Investigating Officer of the case has not been examined and as such, there is no chance of fare investigation of the case and thus the appellant has seriously been prejudiced, in view of Judgment of Hon''ble Apex Court as reported in , Mohan Lal Vs State of Punjab,2018 4 JBCJ 51 (SC). Learned counsel for the appellant has further submitted, that under the aforesaid circumstances the appellant may be acquitted of the charge and conviction under Section 20(a) of the N.D.P.S. Act. 11. Heard, learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor. Learned counsel for the State has submitted that learned trial Court has passed the impugned judgment of conviction and order of sentence on the basis of the materials available on record. 11. Heard, learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor. Learned counsel for the State has submitted that learned trial Court has passed the impugned judgment of conviction and order of sentence on the basis of the materials available on record. Learned counsel for the State has submitted, that the seizure list has been proved and marked as Exhibit-1, the fardbeyan has been proved and marked as Exhibit-2 and the expert report of forensic science laboratory has been proved and marked as Exhibit-3. Learned counsel for the State has further submitted, that the appellant has not been prejudiced because of non-examination of the investigating officer nor any reason has been shown by the appellant for his false implication by the police in present case and as such, this court may not interfere with the impugned judgment of conviction and order of sentence at this stage. 12. Heard, learned counsel for the appellant Mr. N. K. Chatterjee, Advocate and learned counsel for the State, Mr. Pankaj Kumar, learned Additional Public Prosecutor. Perused the materials available on record including the First Information Report, framing of the charge, evidence of five prosecution witnesses, three prosecution exhibits and statement of the appellant recorded under Section 313 Cr.P.C., three defence witnesses as well as impugned judgment of conviction and order of sentence. This Court has taken judicial notice that, the present case has been instituted on the basis of self statement of the Officer-In-charge of Chutia Police Station, but no information was given to superior officer or the excise department as contemplated under Section 42 of the N.D.P.S. Act. This Court has also taken judicial notice that, seized material was never sealed by the raiding party at the place of occurrence nor anything has been brought on record to suggest that, seized material was sent before the forensic science laboratory after due permission from the competent authority. This Court has perused the evidence of the technical expert, P.W.2, Gopal Jee Jha of forensic science laboratory, Ranchi. From the evidence of P.W. 2, it is not clear that, seized material was sent to him in a sealed cover. This Court has further found that the sample of the seized material was never produced in the court and as such, in view of the judgment of Hon''ble Apex Court in the case of Vijay Jain Vs. From the evidence of P.W. 2, it is not clear that, seized material was sent to him in a sealed cover. This Court has further found that the sample of the seized material was never produced in the court and as such, in view of the judgment of Hon''ble Apex Court in the case of Vijay Jain Vs. State of Madhya Pradesh as reported in , (2013) 14 SCC 527 , this Court is of the opinion the prosecution has not able to prove the case beyond all reasonable doubt. This Court has also examined the evidence of Ravi Verma(P.W.3) and Umesh Kumar Rai (P.W.4), who are seizure witnesses. P.W.3 in paragraph-3 of his cross-examination has categorically stated that, his signature was taken in his shop without reading and explaining the content of the seizure list. P.W.4, Umesh Kumar Rai has been declared hostile by the prosecution. The Hon''ble Supreme Court has acquitted accused persons as seizure witnesses have not supported the case, declared hostile as observed in Gorakh Nath Prasad . Under the aforesaid circumstance as discussed above this court is of the opinion that prosecution has miserably failed in proving the case beyond all reasonable doubt against the appellant, who has categorically denied in his statement recorded under Section 313 Cr. P.C. about the ownership of the shop. Accordingly, the impugned judgment of conviction and order of sentence, both dated 05.04.2004 passed by the learned Additional Judicial Commissioner, Fast Track Court No.5, Ranchi, in Special Case No. 08 of 2001 is hereby set aside. 13. In the result, the present Criminal Appeal is hereby allowed. 14. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. 15. Let a copy of this judgment be sent to the Office of learned Advocate General, who is presiding a committee with respect to the case of Excise Department.