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2021 DIGILAW 226 (PAT)

Noor Alam @ Jhunna v. State of Bihar

2021-03-08

BIRENDRA KUMAR

body2021
Birendra Kumar, J.—All the above named appellants faced trail in Trial No. 10 of 2016 arising out of Bairiya P.S. Case No. 315 of 2015 for offences under Sections 489-A/34, 489-C/34 of the Indian Penal Code and for offences under Sections 20(ii)(c) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”), before the learned Additional Sessions Judge-V, Bettiah. By the impugned judgment and order dated 06.02.2018, the appellants were found guilty for offences under Sections 489-C/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. They were found guilty for offences under Section 20(ii) (c) and 22(c) of the NDPS Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lakh under each of the aforesaid head of the NDPS offences. The sentences have been ordered to run concurrently and in default of payment of fine, the appellants have been ordered to undergo rigorous imprisonment for one year. 2. The prosecution case as disclosed in the self statement of Sub-Inspector Sanjay Kumar of Bairiya Police Station (P.W. 1) is that on 19.12.2015 in the early morning the In-Charge of Technical Cell of S.P. Office, Bettiah, namely, Sunil Kumar (P.W. 2) along with Constable Munna Kumar Sah (P.W. 3) came at Bairiya police station and reported that counterfeit Indian currency and narcotic material are being carried by veteran smuggler Noor Alam @ Jhunna along with his associates and they were moving towards Tilangahi. The informant, for deputation of a Magistrate tried to contact the Circle Officer, Bairiya and the Sub-Divisional Officer, Bettiah on mobile. Since it was 04:00 a.m. no one received the phone and due to paucity of time, the informant along with armed forces and the aforesaid two persons proceeded towards Bagahi Nath Baba Chowk and put an ambush thereat. At about 05.15 a.m., two motorcycles were stopped. On one motorcycle, appellant Noor Alam @ Jhunna and appellant Afroz Alam were sitting and on another motorcycle, appellant Sabhapati Ram was there. The appellants disclosed their names to the police. The informant asked them whether they want to be searched in presence of a Magistrate then the three appellants agreed for search by the police. On one motorcycle, appellant Noor Alam @ Jhunna and appellant Afroz Alam were sitting and on another motorcycle, appellant Sabhapati Ram was there. The appellants disclosed their names to the police. The informant asked them whether they want to be searched in presence of a Magistrate then the three appellants agreed for search by the police. Thereafter, in presence of Abhay Kumar (not examined) and Amit Kumar (not examined) of village Chuhiharwa, the person of appellant Noor Alam @ Jhunna was searched and from his pocket twenty pieces of Indian currency notes of one thousand denomination were recovered which were counterfeit once and from the dicky of the motorcycle four Kg. of charas like substance was recovered. From beneath the seat of the motorcycle of Sabhapati Ram, half Kg. of charas was recovered. The appellants did not produce any paper, hence, the appellants were arrested. 3. After investigation, the police submitted chargesheet and during trial, prosecution examined altogether four witnesses. P.W. 4 Birendra Kumar Singh is the Investigating Officer of the case. 4. Mr. Umesh Chandra Verma, learned counsel for the appellants contends that several infirmities are there in the prosecution evidence and the learned Trial Judge has recorded the conviction ignoring the same. According to learned counsel, there is total non-compliance of the mandate of Section 50 of the NDPS Act. No independence witness or seizure list witness were examined by the prosecution to corroborate and ensure trustworthiness of the prosecution case and evidences. There is lack of evidence that the seized substance was even suspected as a narcotic material at the time of recovery nor there is any evidence that in whose presence, the samples were taken out and in whose custody, the seized narcotics were kept to inspire confidence regarding non-tampering with the same. Learned counsels for other appellants submits that nothing incriminating was recovered from possession of appellants Afroz Alam or Sabhapati Ram nor there is any evidence of prior meeting of mind. 5. Learned Additional Public Prosecutor for the State contends that this is not a case of total non-compliance of the mandates of NDPS Act and the law is well settled that even substantial compliance would suffice if the prosecution case is otherwise believable. 5. Learned Additional Public Prosecutor for the State contends that this is not a case of total non-compliance of the mandates of NDPS Act and the law is well settled that even substantial compliance would suffice if the prosecution case is otherwise believable. Learned counsel contends that plurality of the witnesses is not requirement of the law, rather trustworthiness of the witnesses is to be tested and there is nothing to doubt the veracity of the prosecution witnesses in absence of any inkling of motive for false implication. 6. The law is well settled that whether there is adequate and substantial compliance with requirement of Section 50 of the NDPS Act or not is a question of fact to be decided in each case. While total non-compliance with the requirement would be impermissible, the delayed compliance with satisfactory explanation about the delay will be acceptable compliance with the mandate of Section 50 of the NDPS Act. In State of Punjab vs. Baldev Singh reported in 1999(6) SCC 172 , the Hon’ble Supreme Court dealt with Section 50 of the NDPS Act and the effect of non-compliance with the same. It was held that the provisions of Section 50 of the NDPS Act containing certain protection and safeguards implicitly make it imperative and obligatory and cast a duty on the Investigating Officer to ensure that search and seizure of the person concerned is conducted in a manner prescribed by Section 50 of the NDPS Act. 7. The strict procedural requirement as directed in Baldev Singh’s case (supra) was diluted by insertions of sub-section 5 and sub-section 6 to Section 50 of the NDPS Act by Act 9 of 2001. The entire upto date provisions of Section 50 of the NDPS Act are being reproduced below:— “50. Conditions under which search of persons shall be conducted.—(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” 8. While considering the scheme of the NDPS Act, the Constitution Bench of the Hon’ble Supreme Court in Karnail Singh vs. State of Haryana reported in (2009) 8 SCC 539 observed as follows:— “6. The NDPS Act prescribes stringent punishment. Hence, a balance must be struck between the need of the law and the enforcement of such law on the one hand and the protection of citizens from oppression and injustice on the other. This would mean that a balance must be struck in. The provisions contained in Chapter V, intended for providing certain checks on exercise of powers of the authority concerned, are capable of being misused through arbitrary or indiscriminate exercise unless strict compliance is required. The statute mandates that the prosecution must prove compliance with the said provisions.” 9. The prosecution evidence on the record reveals that the police personnel, who were involved in the raid, search and seizure, were conscious of the requirement of a Magistrate, in whose presence, the search is to be effected. 10. The statute mandates that the prosecution must prove compliance with the said provisions.” 9. The prosecution evidence on the record reveals that the police personnel, who were involved in the raid, search and seizure, were conscious of the requirement of a Magistrate, in whose presence, the search is to be effected. 10. P.W. 1 (para 13 and 14) deposed that the appellants had consented in writing to be searched by the police and that written consent was handed over to the Investigating Officer. The witness further admitted that he could not procure presence of a Gazetted Officer before the search as no one responded on being tried on mobile call. The Investigating Officer (P.W. 4) does not say that any written consent of the appellants, was handed over to him by the informant nor any such paper was produced in Court. P.W. 2, who was part of the raiding party, admitted in para 13 that nothing was seized in presence of a Magistrate. P.W. 3 deposed that P.W. 1 had tried to contact the Circle Officer on telephone. However, no one received the phone. This was not put to the appellants while they were being examined under Section 313 Cr.P.C. that they had consented for their search by the police itself. Therefore, there is complete lake of evidence on the record that the appellants had consented to be searched by the police. In the circumstance, subsequent requirement of Section 50 of the NDPS Act was to be followed. If the prosecution takes the aid of sub-section 5 of Section 50 of the NDPS Act as referred above. The compliance of sub-section 6 of Section 50 of the NDPS Act was necessary and in absence of evidence of compliance, the prosecution case remains a case of total non-compliance of mandate of law which is fatal for the prosecution case. 11. The seizure list witnesses were not produced by the prosecution and that has prejudiced the defence of the appellants seriously. P.W. 3 admits that the recovered narcotic was in packets and the packets were not opened at the spot. Therefore, there was no material to even suspect that the recovered substance was narcotic one. Moreover, the prosecution has failed to bring on the record as to under whose custody the recovered substance was kept in the police Malkhana nor any Malkhana register has been produced. Therefore, there was no material to even suspect that the recovered substance was narcotic one. Moreover, the prosecution has failed to bring on the record as to under whose custody the recovered substance was kept in the police Malkhana nor any Malkhana register has been produced. The Investigating Officer admits that the seized substance was handed over to him by the informant. The Investigating Officer sent sample of the same for forensic examination on 10.02.2016. There is no evidence as to in whose presence, the packets of seized material were opened and samples were taken out and sealed nor there is any evidence that from each of the four packets samples were taken and sealed and thereafter sent for FSL examination. 12. P.W. 3 stated that weights and measures were brought from the nearby village for measuring the recovered substance at the place of recovery whereas P.W. 2 has deposed that from the police station itself they had taken the weights and measures. The aforesaid conflicting evidence of the prosecution witnesses creates serious doubt on search and seizure itself which is not corroborated by any independent witness. 13. Fair trial is a constitutional guarantee to an accused under Article 21 of the Constitution of India. Fair Trial includes fair investigation. Onus lies on the prosecution to demonstrate that investigation was fair enough not to cause any prejudice to the accused. 14. From the discussions above, it is evident that several infirmities were there in the investigation including non-compliance of mandates of law and non-support of the factum of search and seizure by the seizure witnesses. Hence, in my view, the prosecution has failed to prove the charges against the appellants beyond reasonable doubt. 15. Mere possession of counterfeit currency notes would not attract the mischief of Section 489-C of the Indian Penal Code unless there is evidence that the possession was with the knowledge of its being counterfeit or having reason to believe the same to be forged or counterfeit and the possessor was intending to use the same as genuine. Nothing has come on the record that the appellant, from whose possession counterfeit currency notes were recovered, had knowledge that the same were counterfeit or had reason to believe the same to be forged or counterfeit. Therefore, conviction under Section 489-C of the Indian Penal Code is otherwise also not sustainable. 16. Nothing has come on the record that the appellant, from whose possession counterfeit currency notes were recovered, had knowledge that the same were counterfeit or had reason to believe the same to be forged or counterfeit. Therefore, conviction under Section 489-C of the Indian Penal Code is otherwise also not sustainable. 16. Section 22(c) of the NDPS Act relates to punishment for contravention in relation to psychotropic substances. Psychotropic substances are defined in Section 2 (xxiii) as follows:— “psychotropic substance” means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;” 17. Charas comes within the definition of cannabis as defined under Section 2(iii) of the NDPS Act and, as such, is a narcotic drug. Contravention of the law relating to cannabis is punishable under Section 20 of the NDPS Act. Therefore, conviction under Section 22(c) of the NDPS Act is otherwise not sustainable in law. 18. The learned Trial Judge has not taken note of the aforesaid serious infirmities in the prosecution case. As such, the impugned judgment and order are hereby set aside and all the appeals are allowed. Let the appellants be set free at once.