Patna High Court
Bhuneshwar Singh vs The State Of Bihar on 12 July, 2017
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.692 of 2016
Arising Out of PS.Case No. -134 Year- 2011 Thana -AMAS District- GAYA
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1. Mangal Singh Son of late Ram Pravesh Ram R/o Hetampur, Ps. Barhara, District
Bhojpur.
.... .... Appellant/s
Versus
1. The State of Bihar
.... .... Respondent/s
with
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Criminal Appeal (SJ) No. 538 of 2016
Arising Out of PS.Case No. -134 Year- 2011 Thana -AMAS District- GAYA
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1. Bhuneshwar Singh son of Ram Govind Singh Resident of Village- Ekauna, P.S.-
Barhara, District- Bhojpur.
.... .... Appellant/s
Versus
1. The State of Bihar
.... .... Respondent/s
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Appearance :
(In CR. APP (SJ) No. 692 of 2016)
For the Appellant/s : Mr. Syed Mohammad Shabbir Alam, Advocate
For the Respondent/s : Mr. Abhay Kumar, APP
(In CR. APP (SJ) No. 538 of 2016)
For the Appellant/s : Mr. Nawal Kishore Singh, Advocate
Mr. Jitendra Nath Tiwary, Advocate
For the Respondent/s : Mr. Syed Ashfaque Ahmad, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 12-07-2017
Criminal Appeal (SJ) No.538 of 2016 wherein Bhuneshwar
Singh is the appellant, Criminal Appeal (SJ) No.692 of 2016 wherein
Mangal Singh is the appellant have been heard conjointly and are
being decided by a common judgment as both the appeals arise out of
common judgment of conviction dated 11.05.2016 and order of
sentence dated 13.05.2016 passed by Additional Sessions Judge-cum-
Special Judge, (NDPS), Gaya relating to NDPS Case No. 20/2011
Patna High Court CR. APP (SJ) No.692 of 2016 dt.12-07-2017 2
arising out of Amas PS Case No. 134/2011 whereby and whereunder
both the appellants have been found guilty for an offence punishable
under Sections 20(C) of NDPS Act and each one has been directed to
undergo RI for 10 years with fine of Rs. 1,00000/- (One Lac) in
default thereof, to undergo RI for 5 years, additionally.
2. Jairam Singh, S.I. (PW 2) of Amas PS filed a written
report addressed to O/C, Amas PS divulging thereunder that on the
same day while he along with S.I, Ramdhin Ram and police personnel
were proceeding towards Chandi Asthan for distribution of fertilizer,
they were instructed by (yourself) the O/C, to conduct a raid as he had
received confidential information regarding transportation of Ganja
from Sherghati to Aurangabad. On the basis of aforesaid information,
they had gone toward toll-plaza where they indulged in surveillance
and during course thereof, one jeep bearing Registration No. WB16N-
2047 came. The driver, seeing the police, dashed against barrier, taken
out and sped away the vehicle which was intercepted after a short
chase. Two persons were apprehended including the driver who
disclosed their identity as Bhuneshwar Singh, occupant and Mangal
Singh, driver. Furthermore, in presence of two seizure list witnesses,
namely, Rampavitra and Rajnish, apart from physical search of
aforesaid two persons, the vehicle was also searched and during
course thereof, from a box attached with jeep, 80 packets of Ganja
Patna High Court CR. APP (SJ) No.692 of 2016 dt.12-07-2017 3
each containing 1 K.G. were seized and for that both the accused did
not plead any kind of explanation whereupon seizure list was prepared
material as well as accused were taken into custody and then, the
written report was lodged.
3. On the basis of the aforesaid written report, Amas PS
Case No. 134/2011 was registered under Section 20(C) and 22(C) of
the NDPS Act followed with investigation which culminated by way
of submission of charge-sheet which happens to be basis of trial
meeting with ultimate result, the subject matter of instant appeal.
4. The defence case as is evident from the mode of cross-
examination as well as statement of accused under Section 313 CrPC
is that of complete denial of occurrence. However, neither any DW
nor any chit of paper has been adduced on behalf of defence.
5. In order to substantiate its case, prosecution had
examined altogether eight PWs out of whom PW-1, Ramdhin Ram,
PW-2, Jairam Singh, PW-3, Punawala, PW-4, Binay Kumar, PW-5,
Arjun Thakur, PW-6, Sanjay Baitha, PW-7, Nagendra Nath Tiwari
and PW-8, Dr. Ram Bilas Prasad. Side by side had also exhibited Ext-
1, written report, Ext-2 Formal FIR Ext-3, Seizure list and Ext-4, FSL
report.
6. Learned respective counsels representing both the
appellants independently, have submitted that the prosecution case as
Patna High Court CR. APP (SJ) No.692 of 2016 dt.12-07-2017 4
has been flashed during course of trial is not at all convincible in the
background of deficiency persisting thereunder. To substantiate such
plea, it has been submitted that from the evidence of PW-7, the
Investigating Officer-cum-O/C of Amas PS, it is apparent that apart
from seizure having been made on 13.09.2011, another seizure was
made on 15.09.2011 after getting an information from other sources
whereupon the seized jeep was searched but none of the other
witnesses have substantiated the same. In the aforesaid background, it
has also been submitted that recovery as alleged occurred under two
separate instance for that two separate seizure lists were prepared out
of which seizure list dated 13.09.2011 has been brought up on record
while seizure list relating to 15.09.2011 has not been brought up as an
exhibit and that has purposely been withheld by the prosecution so
that the controversy regarding preparation of sample could not arise
and in the aforesaid background, adverse inference is to be drawn
against the prosecution. Furthermore, it has also been submitted that
none of the witnesses had deposed with regard to the manner of
sampling. Apart from this, it has also been submitted that none of the
witnesses had stated that sample was prepared in presence of seizure
list witnesses having their signatures over the sample including
accuses who had also put their signatures over the same and further,
the sealing of the sample. Therefore, the process of sampling which
Patna High Court CR. APP (SJ) No.692 of 2016 dt.12-07-2017 5
happens to be backbone of the prosecution is found completely
smashed.
7. Furthermore, it has also been submitted that material has
not been produced before the court as an exhibit. The prosecution has
not produced any reliable evidence which the prosecution could have
by way of exhibiting the Malkhana register that the so alleged seized
Ganja was ever deposited in the Malkhana under proper reference in
the Malkhana register in sealed condition and corresponding
information regarding taking it out from the Malkhana for the purpose
of preparation of sample and then again depositing the same in sealed
condition in terms of Section 55 of the NDPS Act and so, the whole
prosecution case comes within the scanner's eye whereunder it did not
speak with regard to its reliability. Furthermore, it has also been
submitted that from the Ext-4, it is evident that it was alleged to be
transmitted on 14.10.2011 while it was received at the office of FSL
on 03.11.2011 and the prosecution happens to be silent with regard to
intermediary period in whose possession samples were. Furthermore,
it did not justify whether the aforesaid sample relates with alleged
seizure dated 13.09.2011 or 15.09.2011, apart from silence at the end
of prosecution regarding intermediary possession.
8. It has further been submitted that though under the
NDPS Act mode of sampling, process of sampling, numbers of
Patna High Court CR. APP (SJ) No.692 of 2016 dt.12-07-2017 6
sampling have not been properly exposed but, the Narcotic Bureau,
issued orders time to time in order to guard the issue and if the
aforesaid orders are being taken together, it is apparent that whenever
there happens to be recovery of narcotic substance in bulk and if there
happens to be packets containing same weight material, then in that
event, there should be a group so formulated comprising 20 packet
and two samples from each group is to be taken and it should weigh in
between 5 to 25 grams. At least the prosecution should have disclosed
the manner of sampling whether any such group was formulated and
if not, then whether samples from each of the packets numbering 80
were taken out, two in number having duly sealed and further to
corroborate the same, once sealed sample should have been produced
before the Court. Deficiency on that very score at the end of the
prosecution is indicative of the fact that neither there was search nor
seizure rather the appellants fell victim of high handedness of police.
9. Learned APP while controverting the submissions
having been made on behalf of appellants, has submitted that on
flimsy grounds the evidence of the prosecution should not be brushed
aside. Recovery of Ganja in such a huge quantity could not be an
example of false implication and so, the version of the prosecution
having been substantiated by examination of witnesses along with
documentary evidence which happens to be genuine, reliable,
Patna High Court CR. APP (SJ) No.692 of 2016 dt.12-07-2017 7
admissible, appreciable identifying the appellants to be in possession
thereof, during course of search and seizure, coupled with
presumption which has not been rebutted at the end of appellants.
Subsequently thereof, judgment of the learned lower court is fit to be
confirmed.
10. In this case, really, prosecution has adopted a peculiar
methodology since its inception unknown to the Act. Such
methodology is apparent from the record itself. Both the appellants
were apprehended on 13.09.2011, search and seizure were made in
their presence allegedly having their signature over the same, got
them remanded to judicial custody on the following day and then
thereafter, as is evident though not exhibited on record, another
seizure list to be relating to 23 Kilograms of Ganja on 15.09.2011
from a box having been attached with the mudguard of the jeep
bearing Registration No. WB16N-2047. When the aforesaid recovery
was made, then in that event, proper investigation should have been
made relating thereto, trial should have been proceeded for against the
appellants for the total quantum of recovery of Ganja because of the
fact that when the format of the charge has been gone through, it
relates with 13th September 2011 and with regard to recovery of 80
Kilograms of Ganaja . It is not that the case of the prosecution should
be doubted on that very score rather it happens to be an occasion
Patna High Court CR. APP (SJ) No.692 of 2016 dt.12-07-2017 8
which lent doubt regarding authenticity of the prosecution version.
11. In likewise manner, the other illegality persisting on the
record is with regard to status of PW-1, Ramdhin Ram. He turned up
for evidence, his examination-in-chief was recorded, his part cross-
examination was there and then thereafter, he did not turn up for
cross-examination. The learned lower court instead of perceiving the
amplitude of Section 33 of the Evidence Act, considered the prayer of
the prosecution and directed to expunge his evidence vide order dated
11.02.2015, although there happens to be no such provision available under CrPC as well as under Evidence Act, and by such activity discarded evidence of PW-1 from consideration.
12. From the evidence available on the record, it is evident that PWs-3, 4, 5 and 6 have not identified both the appellants in the dock although they were members of raiding party as well as supported the case of the prosecution regarding recovery of Ganja from a Jeep. Therefore, either their presence as a member of raiding party, conduction of raid, apprehension of jeep, search and seizure followed with recovery happens to be suspicious or their presence in that capacity was not at all. Furthermore, PW-6, Sanjay Baitha as per signature having over the seizure list of dated 15.09.2011 given an impression of his presence but during course of evidence, the prosecution had not made any effort on that very score. Therefore, Patna High Court CR. APP (SJ) No.692 of 2016 dt.12-07-2017 9 legal evidence lacks on account of aforesaid activities of the respective witnesses against the appellants, at least identifying them to be the culprit having been apprehended during course of raid.
13. Now the evidence of remaining witnesses has to be seen. Though, the learned lower court treated PW-1 illegally, however, from his evidence it is evident that he was one of the members of the raiding party under the leadership of PW-2, Jai Ram Singh who, after reaching at Toll-plaza put the situation under their surveillance and during course thereof, found a jeep which was intercepted. Two occupants of the jeep managed to escape while the driver and one another were apprehended who disclosed their identity as Mangal and Bhuneshar. Nothing was recovered from their physical possessions. However, during course of search of jeep, from a box having present between two seats 80 packets of Ganja were seized, each weighing 1 Kilogram in presence of Rampavitra and Rajnish. Also put their signatures. He had identified the accused in dock. He had not spoken a word with regard to taking out of sample sealing of material exhibit transferring possession at P.S., deposit of the same in Malkhana. Though had admitted presence of PW-7, O/C also during course of search and seizure.
14. PW-2 is Jai Ram Singh, informant who had reiterated his earlier version and further disclosed that vehicle was searched and Patna High Court CR. APP (SJ) No.692 of 2016 dt.12-07-2017 10 during course thereof, from a box having present in between two seats, 80 packets, each weighing 1 KG Ganja was seized. He exhibited his written report, search-cum-seizure list but he too failed to disclose whether sample was prepared in his presence as well as in presence of witness accused, having their signature and further, the seized 80 packets of Ganja were sealed by him or in his presence. The most surprising feature coming out from his evidence is to the effect that he had not disclosed whether those recovered Ganja were under his possession and in likewise manner, whether the seized Ganja along with written report were placed before the O/C in fulfilment of requirement so prescribed under Section 55 of the NDPS Act. If the evidence of this witness is taken together with the evidence of PW-1, it is apparent that PW-1 had disclosed presence of PW-7, Nagendra Nath Tiwary and further identified his active involvement during course of search and seizure which, PW-2 completely ignored and the reason best known to the prosecution. Again this witness is silent with regard to preparation of sample.
15. PW-7 is the officer-in-charge as well as the Investigating Officer. He had deposed that on 13.09.2011, he was officer-in-charge of Amas PS. After receipt of the written report, he had registered a substantial case and took up investigation. He had recorded statement of the witnesses, visited the place of occurrence, Patna High Court CR. APP (SJ) No.692 of 2016 dt.12-07-2017 11 seen the samples, filed petition before the court seeking permission for examination of the sample and then thereafter, as he was transferred, handed over the charge. During midst thereof, it has also been divulged by him that he took up investigation at the place of occurrence itself as he was present there. He had also joined hands with the other police personnel during course of apprehension of the accused. Vehicle was searched in his presence and from there 80 packets, each weighing 1 Kg ganja were seized. On getting confidential information, vehicle was re-searched and during course thereof, 23 packets of Ganja were again seized.
16. From his evidence, it is apparent that he happens to be completely silent whether the seized articles at least regarding date 13.09.2011 was actually possessed by him at the place of occurrence itself, handed over to him by PW-2 at the place of occurrence itself, or was handed over to him along with written report at the PS and further, in terms of Section 55 of the Act, he had sealed with his seal and deposit the same in Thana Malkhana under proper entry under Malkhana register. In likewise manner, he failed to disclose that sampling was at the place of occurrence or at the PS itself and on which day as per Ext-4 suggests its transportation on 14.10.2011. On account of absence of positive evidence that the Ganja was kept at Malkhana under proper entry, the prosecution has to explain under Patna High Court CR. APP (SJ) No.692 of 2016 dt.12-07-2017 12 whose possession Ganja remained from 13.09.2011 to 13.10.2011, where the prosecution case is lacking.
17. PW-8, Dr. Ram Vilash is the part Investigating Officer who had stated that he had transmitted the sealed sample to FSL for proper examination and then thereafter, submitted the charge-sheet. Again from his evidence, it is apparent that he had not claimed himself to have prepared the sample.
18. The Hon'ble Apex Court in Noor Aga case (2008) 16 SCC 417 has observed that on account of prescribing the stringent punishment, the prosecution has to follow the mandatory provisions of law so that, there should not be an opportunity to have an access to the prosecution to implicate or one should face high handedness of the prosecution. Furthermore, in the aforesaid case, the Hon'ble Apex Court has also taken cognizance with regard to non production of material exhibit in court whereupon observed that the prosecution lacks physical evidence and more particularly, where the version of the prosecution suffers from impropriety then in that event, non production of material in the court happens to be additional ground to discard the whole prosecution case.
19. In the case of Vijay Jain v. State of Madhya Pradesh as reported in (2013) 14 SCC 527, the Hon'ble Apex Court had occasion to see the impact of non production of material exhibit Patna High Court CR. APP (SJ) No.692 of 2016 dt.12-07-2017 13 during course of trial and has dealt with in following way:-
9. Para 96 of the judgment of this Court in Noor Aga case (2008) 16 SCC 417 on which the learned counsel for the State very strongly relies is quoted hereinbelow: (SCC p.
464) "96. Last but not the least, physical evidence relating to three samples taken from the bulk amount of heroin was also not produced. Even if it is accepted for the sake of argument that the bulk quantity was destroyed, the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52-A of the Act."
Thus in para 96 of the judgment in Noor Aga case (2008) 16 SCC 417 this Court has held that the prosecution must in any case produce the samples even where the bulk quantity is said to have been destroyed. The observations of this Court in the aforesaid paragraph of the judgment do not say anything about the consequence of non-production of the contraband goods before the court in a prosecution under the NDPS Act.
10. On the other hand, on a reading of this Court's judgment in Jitendra case (2004)10 SCC 562), we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized Patna High Court CR. APP (SJ) No.692 of 2016 dt.12-07-2017 14 are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok (2011) 5 SCC 123 this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its non- production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.
11.............
12. We are thus of the view that as the prosecution has not produced the brown sugar before the Court and has also not offered any explanation for non-production of the brown sugar alleged to have been seized from the appellants and as the evidence of the witnesses (PW 2 and PW 3) to the seizure of the materials does not establish the seizure of the brown sugar from the possession of the appellants, the judgment of the trial court convicting the appellants and the judgment of the High Court maintaining the conviction are not sustainable."
20. Considering the totality of the event inconsonance with the deficiency persisting on the record, it is evident that prosecution case suffers from following deficiencies:-
(i) Independent search and seizure witnesses have not been Patna High Court CR. APP (SJ) No.692 of 2016 dt.12-07-2017 15 examined nor there happens to be an explanation on that score. (ii) Material exhibit has been made (iii) No positive evidence has been adduced over keeping the seized material in the Malkhana, (iv) No evidence regarding storage of seized articles. (v) No evidence over preparation of sample (vi) No evidence over transmitting information to superior officials over arrest of accused along with recovery of Ganja, (vii) No evidence whether sampling was relating to first recovery or 2nd recovery or from both, though presumption is found attributed against accused but same is to be taken only after having the prosecution succeeds in duly proving its case.
21. On account of aforesaid lapses, it looks unsafe to concur with the finding recorded by the learned lower court.
22. That being so, the same is set aside. Both the appeals are allowed. Both the appellants are under custody, hence, are directed to be set at liberty forthwith if not wanted in any other case.
(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 19.07.2017
Transmission 19.07.2017
Date