Patna High Court
Molina Khatoon @ Malina Khatoon vs State Of Bihar on 15 April, 2010
Author: C.M. Prasad
Bench: Chandra Mohan Prasad, C.M. Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal No. 317 of 2007
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(Against the Judgment of conviction and order of sentence dated 27th February
2007 passed by Sri Sushil Kumar, Addl. Sessions Judge- I, Bhojpur, Ara in
N.D.P.S. Case No. 5 of 2003/12 of 2004.
Molina Khatoon @ Malina Khatoon, W/o. Md. Rahman @ M. Rahman,
R/o. Village- Hailan, P.S. Khanakul, Distt. Hoogli (West Behgal).
----------- Appellant.
V.
The State of Bihar
----- Respondent.
For the appellant: Mr. Akhileshwar Prasad Singh, Advocate.
Mr. Prabhat Kumar Singh, Advocate.
Mr. Bimal Kumar, Advocate.
For the State: Mr. Lala Kailash Bihari Prasad, Sr. Advocate.
PRESENT
THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD,
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Hon'ble C.M. Prasad, J. This appeal is against the Judgment of
Conviction and Sentence dated 27.02.2007 of the Addl.
Sessions Judge-I, Bhojpur, Ara passed in N.D.P.S. Case
No.5 of 2003/12 of 2004, whereby the appellant, on
having been found to have contravened the provisions of
Section 8(c) of the N.D.P.S. Act (hereinafter referred to
as the Act) due to having possessed 37 Kgs. of Ganja
contained in her attaiche and airbag and therefore, she
2
was convicted under Section 20(b) of the Act and
sentenced to suffer R.I. for ten years and to pay a fine of
one lakh and in default of payment of fine to undergo
R.I. for one year.
2. The informant (P.W.1), Raj Kumar
Paswan stated in his written report (Ext-2) that on
09.07.2003 at about 8.05 a.m. he received telephonic
information from the Superintendent of Police, Bhojpur
that on Ara Barhara Pitch Road a female was going on
Commander Jeep No.BR-3 7470 with Ganja contained in
her attaché and bag and that the Jeep was coming from
the side of Ara. Getting this information he registered a
Station Diary entry at the P.S. and constituted a police
raiding party, which was also joined by a Magistrate Mr.
Rai Ram Lala, Labour Enforcement Officer, Koilwar,
who was available at that time. The police party
proceeded and at about 8.30 a.m. near Daulatpur village
on Ara-Barhara Road, at a distance of about 15 meters
from the Kali Mandir, they noticed that a Jeep bearing
registration No. BR-3 7470 was coming from the side of
Ara. The Jeep was stopped and in presence of witnesses
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Ajay Kumar Tripathy (P.W.4) and Anil Kumar Singh
(P.W.5) who were respectively the driver and owner of
the Jeep as well as in presence of the Magistrate Rai Ram
Lala (P.W.3) the jeep was searched. On search it was
found that a female in suspicious condition was sitting on
a seat situated behind the seat of the driver of the jeep
and on being questioned the female disclosed her name
as Molina Khatoon, the appellant. Informant further
stated in the written report that on search of her blue
colour attaiche and black colour air-bag ganja was
recovered. Local Chaukidar was called and weighing
balance was procured by him. Thereafter, the ganja
wrapped in red colour polythin recovered from the
attaiché was found to be weighting 25 Kgs and the ganja
contained in red polythin and recovery from air-bag
weighed 12 Kgs. The informant further stated in the
written report that the Ganja was seized in presence of
witnesses and four samples which was described as AS-
1, AS-2, BS-1 and BS-2 each of 50 gms was taken. It
was also stated that the samples as well as the recovered
Ganja was sealed at the spot in presence of the witnesses.
4
The informant also stated that on personal search of the
appellant as taken by lady constable No.809 Kumti Devi,
cash of Rs.2600/- and a three tier A.C.ticket for journey
from Patna Junction to New Delhi on 9.07.2003 as well
as a telephone bill regarding telephone No. 03211-
26512100000 was also recovered from the appellant and
a Seizure List (Ext-1) for this was also prepared. The
informant also stated in the written report that the
appellant confessed before them that she was carrying
the recovered Ganja in her attaiche and bag and that one
day ago she had purchased the same from one
Chaturbhuj Singh of village Ekona @ Rs. 900/- per Kg.
As a consequence of the recovery and seizure as
aforesaid the informant had prepared his written report
and then he further stated to have handed over the seized
Ganja and the sample to the Officer-in-Charge, Ara
Muffasil P.S. within which jurisdiction the recovery was
made. On the basis of the written report F.I.R. was
instituted and investigation commenced. On completion
of investigation charge sheet was submitted and then the
appellant was put on trial and she has been convicted and
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sentenced as above.
3. As many as seven witnesses were
examined by the prosecution. Learned trial Court
marked the F.S.L. report as Ext-3 under the provisions of
Section 293 Cr.P.C. The F.S.L. report mentions that on
examination the sample sent to it was found to be Ganja.
4. P.W.2 Raj Kumar Paswan is the informant
himself. P.W.2 Manoj Kumar is the driver who was
driving the jeep of the police raiding party. P.W.3 Rai
Ram Lala, Labour Enforcement Officer is a Magistrate
who had accompanied the raiding party at the time of
search and he had also come to the P.S. when the
information was lodged by the informant. P.W.4 Ajay
Kumar Tripathy and P.W.5 Anil Kumar Singh are
respectively driver and owner of the Commander Jeep in
which the appellant was traveling and they are stated to
be the witness on the point of the search and seizure from
the possession of the appellant.
5. P.W.6 Shambhu Nath, Assistant Sub
Inspector was a member of police party. P.W.7 Ram
Babu Mandal, the O.C. of Ara Muffasil P.S. had
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registered the F.I.R. at his P.S. and he had also
investigated the case and submitted charge sheet after
completion of the investigation.
6. The informant (P.W.1) stated in his
evidence whatever was stated by him in his written
report that on receiving information from Superintendent
of Police, Bhojpur he had constituted a police raiding
party, which was joined by a Magistrate P.W.6 and that
when the jeep was found coming from Ara it was
searched, as a result of which 25 Kgs Ganja contained in
attaiche and 12 Kgs Ganja contained in airbag, as was
being carried by the appellant, was recovered. He stated
in his evidence that the Ganja had been weighed and it
was seized at the place and sample was also taken and
that seizure list (Ext-1) was also prepared at the spot and
that witnesses Ajay Kumar Tripathy (P.W.4), Anil
Kumar Singh (P.W.5) and the Magistrate Rai Ram Lala
(P.W.3) had signed on the seizure list as witnesses. The
informant also deposed that F.I.R. was lodged at Ara
Muffasil P.S. on the basis of written report (Ext-2). He
also stated that the seized Ganja and the accused was
7
handed over to the Officer-in-Charge, Ara Muffasil
because the recovery had been made within his
jurisdiction. It is remarkable that in his evidence the
informant states to have recovered and seize the Ganja
and prepared the seizure list at the spot and also to have
taken sample from it but he does not say anywhere that
he had sealed the seized Ganja or the sample.
7. The P.W.2 Manoj Kumar was the driver of
the Jeep carrying the raiding party. He simply deposed
that the Jeep was intercepted and searched and a lady
was found carrying attaiche containing 25 Kgs and 12
Kgs of ganja were recovered and the seizure list was also
prepared at the spot. This witness also does not say
about the sealing of the recovered Ganja.
8. The P.W.3 is the Magistrate who had
accompanied the raiding party. He deposed that on the
orders of the S.D.O. Ara Sadar he had joined the raiding
party and that on search of the briefcase and the airbag
being carried by the lady in the jeep, 25 Kgs of Ganja
was recovered. Thus, this witness says about recovery of
only 25 Kgs of Ganja. He also deposed that the
8
informant had prepared a seizure list with regard to the
recovery and he identified his signature Exts-1 & 1/1.
He also stated that the sample of the Ganja was taken.
This has to be remarkably noticed in his evidence that
this witness who was a Magistrate accompanying the
raiding party and who says about preparation of the
seizure list at the spot, but he does not say about the
sealing of the seized ganja or the samples. This witness
appears to say in his examination-in-Chief that the
seizure list was prepared at the spot but in his cross-
examination at para-5 he states that after seizure he,
along with raiding party had come to the Police Station
meaning thereby Ara Muffasil P.S. He further deposed
that he had remained at the P.S. till the seizure list was
prepared there and that before preparation of the seizure
list samples were also taken. Thus, according to the
evidence at para-1 of this Magistrate witness, it would
appear that the seizure list was prepared at the police
station and samples were also taken there. As already
stated this witness does not say anywhere in his evidence
that the seized Ganja or the sample were sealed at any
9
time before him. He also stated in Para-15 of his cross-
examination that after preparation of the seizure list and
taking of sample at the police Station he had left that
place.
9. The P.W.4 & 5, the driver and owner of
the jeep, in which the appellant was traveling, have been
examined by prosecution as important witness on the
point of search and seizure, who also signed the seizure
list. P.W.4 simply stated in his examination-in-chief that
seizure list with respect of the recovery from the
appellant contained his signature which was identified by
him and it was proved as Ext-1/2. But this witness does
not say in detail about the factum of recovery having
been made in his presence. Rather, in his cross-
examination he gave a categorical statement that the
seizure had not been made in his presence and the police
had obtained his signature on blank paper. Similar is the
evidence of P.W.5, who in his examination in chief
simply identified and accepted his signature (Ext-3) on
the seizure list, but he does not say about the seizure
being made in his presence, rather in his cross-
10
examination he categorically deposed that the seizure
had not been made in his presence and that the signature
has been obtained by the police on blank paper.
According to the case of the prosecution, these two
witnesses were present at the time of recovery and they
had witnessed the search and seizure. But these two
witnesses do not support the prosecution story in their
evidence and the peculiar aspect of the case is that these
two witnesses, who have given death blow to the
prosecution story about the search and seizure have not
been declared hostile by the prosecution and they have
not been cross-examined by the prosecution even to
suggest that they were stating any false evidence. It
appears that the prosecution is not challenging their
evidence.
10. The P.W.6 A.S.I., who had accompanied
the raiding party had deposed about the recovery from
the appellant and he also stated about the preparation of
the seizure list at the spot. But this witness also does not
say anywhere that the sample was sealed by the
informant or by any other member of the raiding party.
11
11. P.W.7 Ram Babu Mandal is the
Investigating Officer. He stated in his evidence that on
9.07.2003 at 11.30 a.m. the informant (P.W.1) gave out
his written report and on the basis of the same he had
instituted P.S. Case No. 112 of 2003 at his P.S. and had
himself taken up investigation. He further stated in his
evidence that in course of investigation he had inspected
the P.O., which was situated at a distance of about 50
meters from Kali Mandir in village Daulatpur. He also
stated that he had recorded the statement of witnesses
Rai Ram Lala (P.W.3), Shambhu Nath Choudhary
(P.w.6) and Kunti Devi (not examined) Manoj Kumar
(P.W.2) and Anil Kumar (P.W.5) at the police station
and he further stated that on completion of the
investigation he had submitted the charge sheet. The
examination-in-chief of this witness, in such an
important case, is very brief and he does not say
anywhere in his examination-in-chief that any seized
Ganja or sample was produced by the informant before
him or that he took charge of any such Ganja or sample.
He simply stated that he had sent the seized article to the
12
Forensic Science Laboratory for examination, but there
is no evidence as to who had prepared the sample and
who had sealed it. At para-6 of his cross-examination he
stated that the seized Ganja was not available at that
time. There is no explanation in the evidence of this
witness as to what happened to the seized Ganja or who
kept it. Under the provisions of Section 55 of the Act, at
least this witness, the I.O., who was an Officer-in-Charge
of the P.S. and where the F.I.R. was lodged, has to show
about taking of charge of the articles but there is no such
evidence to show that he took charge of the seized Ganja
or what happened to it.
12. During argument learned counsel for the
appellant assailed the prosecution story on the ground
that the search and seizure as stated by the prosecution is
highly doubtful and no reliance can be placed on
prosecution in this regard. It was also argued that the
very mandatory requirements as provided under Section
55 of the Act have not been complied inasmuch as there
is no evidence to show that the seized articles were
sealed and were taken charge of by the concerned
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Officer-in-Charge of the police station, where the F.I.R.
was lodged. It was also argued that the provisions under
Section 55 of the Act provides that when any Narcotic
Substance is seized by any authority and its sample is
taken, the sample has to be sealed by the seizing
authority and Officer-in-Charge both but there is no
evidence to show such.
13. On going through the evidence as
discussed, it is clear that there is no evidence in the
statement of any of the witnesses including the informant
and Officer-in-Charge that the seized article had been
sealed. There is also no evidence to show that the
sample which is said to have been sent for chemical
examination was sealed by the informant and the
Officer-in-Charge as is compulsorily required under
Section 55 of the Act. For the sake of reference Section
55 of the Act is quoted below:-
"55. Police to take charge of articles seized
and delivered.- An Officer-in-Charge of a police station
shall take charge of and keep in safe custody, pending
the orders of the Magistrate, all articles seized under this
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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."
Thus the prosecution has completely failed to
prove through evidence that the seized articles and the
samples were sealed as per the mandatory requirements
under Section 55 of the Act. In this regard the learned
Addl.P.P. referred to the seizure list (Ext-1) and argued
that it is mentioned in the seizure list that the seized
articles and the sample had been sealed by the informant
and therefore, it was argued that this Court may take
notice of the fact of sealing. But I fail to accept this
submission of learned Addl.P.P. without there being any
evidence in this regard. The factum of sealing cannot be
taken as proved simply due to such assertion in the
seizure list, but the prosecution has to prove it through
independent evidence and the prosecution has miserably
15
failed in this regard.
14. Even the veracity of the prosecution story
about the factum of recovery and preparation of seizure
list at the P.O. has been assailed and it was submitted by
the appellant's counsel that the prosecution evidence is
quite contrary in this regard. The informant (P.W.1)
stated that the seizure list was prepared at the P.O. but
the Magistrate (P.W.3), who had accompanied the
raiding party stated in his evidence at para-5 that he had
remained at the police station till the seizure list was
prepared and the samples were taken from the seized
Ganja. This evidence indicates that the seizure list was
prepared at the police station. Thus, the credence of the
prosecution story that it was prepared at the P.O. is
deeply affected in an adverse manner. Besides this the
two important seizure witnesses, P.Ws.4 & 5, who are
also said to have signed the seizure list have not
supported the prosecution story and they have deposed
that any seizure was made in their presence and that their
signature was forcibly obtained on blank paper. The
evidence of these witnesses assumed significance in the
16
situation that the prosecution did not even chose to cross-
examine these two witnesses to say that their statement is
not correct. When the prosecution itself has chosen not
to challenge such evidence of these witnesses, this Court
is left with no option but to accept their evidence as
credible and this goes to discredit the prosecution story
about the recovery and preparation of seizure list as
alleged.
15. Thus hearing and considering the
evidence of witnesses and the materials as brought by the
prosecution on record, I find that the prosecution has
miserably failed to prove the story of recovery from the
appellant. The mandatory requirement of the sealing of
the recovered article by the officer recovering it and
sealing of the samples by him and the officer in charge as
provided under Section 55 of the Act has also not been
proved. In such view of the matters, I find that the
charge as leveled on the appellant has not been proved
and the appellant deserves acquittal. Accordingly, the
appellant is acquitted of the charge. The appeal is
allowed. The appellant is in custody. She is ordered to
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be released forthwith if not required to be detained in any
other case.
(C.M. Prasad, J.)
Patna High Court,
Dated, the 15th April, 2010
N.A.F.R./Mkr.