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2018 DIGILAW 894 (JHR)

Laldeo Mahto @ Lalo Mahto v. State of Jharkhand

2018-04-20

KAILASH PRASAD DEO

body2018
JUDGMENT : 1. Heard learned counsel for the appellant Mr. Mahesh Tewari assisted by Md. Sahabuddin, Advocates as well as learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor assisted by Mr. Suraj Verma, Advocate. 2. The instant Criminal Appeal has been preferred against the judgment of conviction dated 17.12.2003 and order of sentence dated 19.12.2003 passed by the learned Special Judge-cum-Sessions Judge, (N.D.P.S. Act) Hazaribagh, in G. Case No.9 of 1998/T.R. No.6 of 2003, whereby. the sole appellant has been convicted for offence committed under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo rigorous imprisonment for 3 years and also a fine of Rs. 10,000/- and in default of fine, he shall undergo further period of one year rigorous imprisonment. 3. The prosecution case is based upon prosecution report submitted by informant Pradip Kumar Sinha (P.W. 2) (Sub-Inspector, Excise). As per the prosecution report informant got a confidential information on 18.5.1998, that one Laldeo Mahto is selling contraband substances in his shop, situated at Village-Koiri Tola, near Kali Mandir, Chitarpur, P.S.-Ramgarh Project, District-Hazaribagh. On such information, the informant (P.W. 2) Pradip Kumar Sinha (Sub-Inspector, Excise) along with Talkeshwar Tiwary (P.W. 1) a constable and other police personnel reached the shop of appellant at 6.30 p.m. and on searching in the shop, the informant got 250 g.m. of ganja and 250 g.m. of Bhang (hemp) kept separately in polythene packet along with 24 pieces of chillams (Ganja smoking pot) was recovered and seized by the informant in presence of accused and two independent witnesses. Seizure list was also prepare on which accused has put his signature in presence of other witnesses and a copy of seizure list was also handed over to accused. Sample of the seized Ganja and Bhang which was separately sealed by the informant in a sack taken from the accused and thereafter informant along with accused and seized materials came to his office. The informant has remanded the accused to the court and also send the sample of the seized material for chemical test before the expert. 4. That charge has been framed u/s 20(i)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 on 16.5.2000 by the Sessions Judge, Hazaribagh. The accused has pleaded innocence and thus put for trial. 5. That prosecution has ,examined two witnesses. 4. That charge has been framed u/s 20(i)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 on 16.5.2000 by the Sessions Judge, Hazaribagh. The accused has pleaded innocence and thus put for trial. 5. That prosecution has ,examined two witnesses. P.W. 1 is Talkeshwar Tiwary (Excise Constable) and P.W. 2 is Pradip Kumar Sinha (informant) Sub-Inspector (Excise). 6. Apart from oral evidence the prosecution has adduced Seizure list as Exhibit-1, the signature of the witnesses on the search-cum-seizure list as Exhibit-2 (signature of Talkeshwar Tiwary on seizure list as Exhibit-2/1, signature of Dildar Hussain on seizure list as Exhibit-2/2,. signature of accused Laldeo Mahto on seizure list as Exhibit-2/3), signature of P.W, 2 on the forwarding report of the accused Laldeo Mahto on the seizure list as Exhibit-3, Exhibit-4 is writing and signature of informant Pradip Kumar Sinha. on seizure list, Exhibit-5 is the report of Chemical Examination submitted by Shri Lalan Prasad Singh (Excise Chemical Examiner), Bihar and Exhibit-6 is prosecution report. The defence has also examined two witnesses as defence witness. Sudheshwar Mahto as D.W. 1 and Sahdeo Prajapati as D.W. 2. 7. Talkeshwar Tiwary, Excise constable. has been examined as P.W. 1. This witness has stated that on 18.5.1998, while he was posted in Ramgarh, this witness along with the Sub-Inspector Pradip Kumar Sinha and Dildar Hussain and Dhaneshwar Prajapati went to the shop of Laldeo Mahto @ Lala Mahto situated at Koiri Tola, Near Kali Mandir, P.S.-Chitarpur, Ramgarh and conducted raid in presence of the witnesses, where a polythene containing 250 g.m. of ganja and another polythene containing 250 g.m. of bhang were recovered. Apart from it a polythene containing 24 pieces of chillam was also recovered. This witness has further stated that no valid paper or satisfactory reply was given by Laldeo Mahto with respect to these articles and thereafter all these articles were seized. in presence of the witnesses by preparing a seizure list and all these articles were sealed in a sack. The fitness has proved the signature and handwriting of Pradip Kumar Sinha, Excise Sub-Inspector who prepared the seizure list and marked the same as Exhibit-1. in presence of the witnesses by preparing a seizure list and all these articles were sealed in a sack. The fitness has proved the signature and handwriting of Pradip Kumar Sinha, Excise Sub-Inspector who prepared the seizure list and marked the same as Exhibit-1. The witness has also proved his own signature and the signature of the witnesses Dildar Hussain and Dhaneshwar Prajapati as Exhibits-2 to 2/2 and the signature of accused Laldeo Mahto was also exhibited as Exhibit-2/3 on the seizure list, The accused was arrested and after preparation of the papers sent to the jail. During cross-examination this witness has admitted that while preparing the seizure list by the Sub-Inspector, Excise, Pradip Kumar Sinha, two person out of 5-7 persons standing outside the shop were called and their signature were taken. Prior to that he was not acquainted with those two persons. This witness has further stated that they reached the shop at 6.30 p.m. and left the shop after conducting the entire process by 6.40 p.m. The witness has further stated that. seized materials were never sent before the Chemical Examiner in his presence, which were seized in a sack of the accused. This witness has further stated that seized materials are not before him in the court. 8. Learned counsel for the appellant has submitted that P.W. 1. himself has given a fatal blow to the prosecution case during cross-examination, as he has admitted in paragraph 8 of his cross-examination that seized materials were never sent in his presence before Chemical Examiner. Subsequently this witness has also stated that seized material is not present before him in the court and as such sanctity of the Chemical Examiner of the seized material and non-production of the seized material before the court gives fatal blow to the prosecution case and thus the impugned judgment of conviction and order of sentence cannot sustain in the eyes of law. 9. 9. Pradip Kumar Sinha (P.W. 2), Sub-Inspector, Excise and informant of the case has been examined as P.W. 2 This witness has stated that on 18.5.1995 (wrongly typed as 1995 instead of 1998) while he was posted as Sub-Inspector, Excise, he got an information, that one person is doing illegal sell of ganja at Chitarpur, near Kali Mandir, Koiri Tola named as Laldeo Mahto and thereafter along with other excise personnel and the armed guard of the Ramgarh Project, District-Hazaribagh, they went to the grocery shop of the accused at 6.30 p.m. and conducted a proper search in presence of the witnesses. During search, he recovered polythene containing ganja and another polythene containing bhang and third polythene containing 24 pieces of chillam. The accused was arrested immediately and the ganja and bhang were weighed in the weighing machine and thereafter samples were taken from both the polythenes for chemical examination. The accused have not given any satisfactory reply nor shown any paper regarding material seized. Both ganja and bhang were of 250 g.ms. Seizure list was prepared and seized material were sealed. 10. The seized materials were further taken into a plastic sack of the accused and the samples were also sealed and seizure list was prepared on which two independent witnesses Dildar Hussain and Dhaneshwar Prajapati along with excise constable Talkeshwar Tiwary, put their signatures. The seizure list was prepared in two copies. One copy was handed over to the accused, who put, the signature on back of the same and on the next date the accused along with seizure list and prosecution report was forwarded to the court. The forwarding report is marked Exhibit-3 and his signature on the seizure list as Exhibit-4. The samples were subsequently sent to Patna and the report of the Chemical Examiner was received which was filed while informant was deposing in the court as P.W. 2 and said report is marked Exhibit-5. The prosecution report written, prepared and signed by him has been marked Exhibit-6. 11. During cross-examination, this witness has admitted that he is informant and the Investigating Officer of this case. This witness has further stated that while, he was conducting the search no sack or box was with him nor any such thing was with the Excise Personnel. The witness has proved the place of occurrence and has further stated that two seizure witnesses were not known to him. This witness has further stated that while, he was conducting the search no sack or box was with him nor any such thing was with the Excise Personnel. The witness has proved the place of occurrence and has further stated that two seizure witnesses were not known to him. Those two persons namely Dildar Hussain was resident of Naya Serai, P.S.-Ramgarh, District-Hazaribagh, and Dhaneshwar Prajapati was resident of Hesala, P.S. Giddi, District-Hazaribag and the said villages are situated at a distance of 20 k.m. and 35 k.m. from the place of occurrence. Before taking their signature, the seizure list was read over to them and subsequently the signature of the accused was taken. Those two witnesses were not brought to the office. This witness has categorically stated in paragraph 25 of his cross-examination that the seized material were seized by him but is not available in the court. This witness has further stated in paragraph 32 of his cross-examination that seized materials were seized in a plastic sack with the help of Lah and sealed by tieing the same with thread and his signature was there The sealed samples were kept in the office which is situated at Gol Park, Ramgarh. The said samples were kept with him for one year and five months and the samples were sent to the Chemical Examiner at Patna, within one month of seizure. The Chemical Examiner report was received by him, but he could not remember on. what date the same was received. After receiving the Chemical examination report, no notice was given to the accused offering him an opportunity to re-examine it. This witness has further stated that, he himself went to Patna to hand over the sample to the Chemical Examiner, where assistant of the Chemical Examiner received the same. Neither the receipt of the receiving regarding sample was produced in the court nor any certificate was issued to him, that sealed samples was intact. This witness has stated in paragraph 34 of his cross-examination, that he did not remember, when he received the report of the Chemical Examiner but he is producing the same in the court while deposing as a witness on 1.5.2001. This witness has stated in paragraph 34 of his cross-examination, that he did not remember, when he received the report of the Chemical Examiner but he is producing the same in the court while deposing as a witness on 1.5.2001. This witness has further stated in paragraph 37 of his cross-examination, that he did not inform any police station rather he himself recorded the information in his information register on 18.5.1998 but the same information registered has not been produced in the court. On query made by. the learned Trial Court, this witness has stated that said information, registered is available before the Sub-Inspector, Excise at Ramgarh Circle. This witness has stated that after getting information, he informed the Assistant Excise Commissioner, on telephone but no written order was taken. He has no paper to produce in the court with respect to that. The witness has admitted during cross-examination that during investigation he has not taken any affidavit from the Chemical Examiner, regarding the proper seal intact over the sample. This witness has further stated that in paragraph 41 of his cross-examination that before submitting charge-sheet he has not taken any written permission from his superior authority. The suggestion was given by the defence, with respect to the sanctity of the seal over the sample and production of the same, before the Chemical examiner under seal and properly intact condition and the report received by him was not under any seal cover. 12. After examination of the prosecution witnesses, the statement of the accused appellant was recorded u/s 313 Cr.P.C. 13. Further the defence has examined two witnesses Sudheshwar Mahto as DW. 1, who has stated that Excise Officer after assaulting Laldeo Mahto has obtained his signature on blank paper forcibly and Sahdeo Prajapati (D.W. 2) has stated that Laldeo Mahto was asked by the Excise Officer that who is preparing liquor upon which Laldeo Mahto said that he has no knowledge about the same. 14. The learned counsel for the appellant, Mr. Mahesh Tewari assisted by Md. Sahabuddin, Advocates has submitted that the impugned judgment of conviction and order of sentence is not sustainable in the eyes of law for the following reasons:- (i) Seized materials were never produced or sent to the court. (ii) The sealed sample were never produced before the Chemical Examiner in an intact position. Mahesh Tewari assisted by Md. Sahabuddin, Advocates has submitted that the impugned judgment of conviction and order of sentence is not sustainable in the eyes of law for the following reasons:- (i) Seized materials were never produced or sent to the court. (ii) The sealed sample were never produced before the Chemical Examiner in an intact position. (iii) The sealed envelope were never placed before the court to produce, that such sample was sent before the Chemical Examiner in a sealed condition. (iv) The statutory compliance Section 42 of the N.D.P.S. Act has not been proved legally nor the sub-clause 2 of Section 42 of the N.D.P.S Act has been complied by the informant-cum-investigating Officer, P.W.2 Pradip Kumar Sinha and as such without having any information to the superior, before making such raid or before submitting the charge-sheet or even after 72 hours of the raid has not been complied by the informant, who is an Excise Sub-inspector. The learned counsel has further submitted that informant of the case is an Excise Officer, he has conducted the raid, prepared a seizure list and those two seizure witnesses have also not been examined, who were independent witnesses to prove the prosecution case beyond all reasonable doubts and as such on the basis of a statement of P.W. 2 Pradip Kumar Sinha, who is an Excise Inspector, the entire case is cooked up and on the basis of such materials without having any legal scrutiny, the learned Trial Court has convicted the appellant. (v) The sanctity of the seized material is itself doubtful as P.W. 1 has categorically stated in his examination in chief that seized material is not present-in-the court before him as stated in paragraph 10 of his cross-examination and subsequently P.W. 2 has also admitted in paragraph 25 of his cross-examination that seized material is not available in the court. Further in paragraph 32, P.W. 2 has himself admitted that the sample of the sealed material were not kept rather the sample were sealed and kept in the office which is situated at Gol Park, Ramgarh in his office which was kept for one year and five months as stated in paragraph 33 of his cross-examination. 15. Further in paragraph 32, P.W. 2 has himself admitted that the sample of the sealed material were not kept rather the sample were sealed and kept in the office which is situated at Gol Park, Ramgarh in his office which was kept for one year and five months as stated in paragraph 33 of his cross-examination. 15. The learned counsel for the appellant has further submitted that the Chemical Examiner’s report was never sent to the court as it appears from paragraph 33 of the cross-examination of P.W. 2, informant of the case as it is stated that he received the report of the chemical examiner but could not remember when he has received the same. 16. Learned counsel for the appellant further submits that this witness while handing over the samples, has not taken any certificate with respect to proper intactment of the seals as stated in paragraph 39 of his cross-examination. This witness has stated, that the report received by him from the Chemical Examiner was kept with him and it has only been produced in the court at the time of his deposition on 1.5.2001 (this witness was examined on 1.5.2001 and 2.5.2001). 17. The learned counsel for the appellant, has further submitted that the Information Register in which as per P.W. 2, he has mentioned about the information received that one Laldeo Mahto is selling ganja and bhang has never been produced in the court and it appears from paragraph 37 of the cross-examination of P.W. 2, that neither the charge-sheet nor any permission was taken from the superior officer before submitting charge-sheet as admitted by P.W. 2 in paragraph 4 of his cross-examination and under such circumstances the conviction of the appellant in such a stringent act of Narcotic Drugs and Psychotropic. Substances Act, 1985 cannot sustain in the eyes of law which has wrongly been passed by the learned Trial Court on the basis of oral testimony of P.W. 2 without being properly corroborated by the Chemical Examiner or producing the sealed envelope sample to the court nor the seized material were produced in the court and under such circumstances the impugned judgment of conviction and order of sentence is bad in law and is fit to be set aside. 18. The learned counsel for the appellant, Mr. 18. The learned counsel for the appellant, Mr. Mahesh Tewari has further submitted that non-examination of the Chemical Examiner, the seizure witnesses or independent witnesses are fatal for the prosecution case as the report of the Chemical Examiner was produced during the deposition by the informant in the court in an open condition and not in the sealed envelope as he has received the same from the Chemical Examiner and as such without having any seal or emblem over Exhibit-5 which is the Chemical Examiner’s Report purported to be issued by the Chemical Examiner, Patna is a fabricated document and cannot be relied upon. The prosecution has not taken steps, either to call the Chemical Examiner or to call the Registrar with respect to the memo no. mentioned in the Chemical Examiner report and as such Chemical Examination report is a forged document and cannot be relied upon as the same has got no legal sanctity and does not bears any stamp and was produced in an open condition in the court at the time of deposition. After keeping the same for a long time with the informant who is an interested person to falsely implicate the appellant. 19. The learned counsel for the appellant has drawn the attention of this court regarding the case of Gorakh Nath Prasad vs. State of Bihar as reported in (2018) 2 SCC 305 where the Hon’ble Supreme Court has acquitted the appellant as the seizure witness has turned hostile: Here is a case where seizure witness has not been examined but in the abovementioned case, the Hon’ble Supreme Court has acquitted the accused as the seizure witness has turned hostile and non-production of the seized material was" considered fatal to the prosecution case. The learned counsel has submitted that in the present case the seizure witness has not been examined and withholding of seizure witness is fatal for the prosecution case as the seizure, witness might not have supported the prosecution case. Apart from that the seized material were also not produced in the court and the sanctity of the examiner report is under cloud and as such in that view judgment passed by the Hon'ble Supreme Court, the appellant is entitled for the benefit of doubt. 20. Apart from that the seized material were also not produced in the court and the sanctity of the examiner report is under cloud and as such in that view judgment passed by the Hon'ble Supreme Court, the appellant is entitled for the benefit of doubt. 20. The learned counsel for the appellant has further submitted, that in the case of Vijay Jain vs. State of Madhya Pradesh as reported in (2013)14 SCC 527 , the Hon'ble Supreme Court has acquitted the accused by setting aside the conviction because of non-production of seized material as well as the sample of the seized material. The same view was earlier also taken by the Hon'ble Supreme Court in (2000)10 SCC 567 and as such benefit of doubt may be granted to the appellant. 21. Learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor has submitted, that seized. materials were sent before the Chemical Examiner and that is the reason, the report has been received as Exhibit-5 but he has fairly submitted that seized materials were never produced before the court. 22. The learned counsel for the State Mr. Pankaj Kumar, learned Additional. Public Prosecutor has submitted that so far as sanctity of the Chemical Examiner Report is concerned, it cannot be doubted as the same has been produced by an Excise Inspector, who has no malice with the appellant but has fairly submitted that the seizure witness or the Chemical Examiner has not been examined in this case. The learned counsel for the State has fairly submitted that Supreme Court's order is binding upon this court. 23. After hearing the counsel for the appellant Mr. Mahesh Tewari and counsel for the State Mr. Pankaj Kumar, Additional Public Prosecutor and from perusal of the records it appears, that prosecution has not produced the seized material. The learned counsel for the State has fairly submitted that Supreme Court's order is binding upon this court. 23. After hearing the counsel for the appellant Mr. Mahesh Tewari and counsel for the State Mr. Pankaj Kumar, Additional Public Prosecutor and from perusal of the records it appears, that prosecution has not produced the seized material. Further, this court is of the opinion that prosecution has miserably failed to prove the case as non-production of the seized material and non-production of the seized sample received and report of the Chemical Examiner in intact condition are fatal to the prosecution case and thus benefit of doubt is granted by setting aside the impugned judgment of conviction dated 17.12.2003 and order of sentence dated 19 12.2003 passed by the learned Special Judge-cum-Sessions Judge, (N.D.P.S. Act) Hazaribagh, in G. Case No. 9 of 1998/, T.R. NO.6 of 2003 is hereby set aside and the appellant Laldeo Mahto is acquitted of charge u/s 20(i)(B) ND.P.S. Act and the appellant who is on bail is discharged from liability of his bail bond. 24. The present Appeal is allowed. 25. Let the lower court record be sent down to the court below.