Patna High Court
State Thru. Union Of India vs Krishna Prasad Choudhary & Anr on 29 January, 2013
Author: Mandhata Singh
Bench: Mandhata Singh
Patna High Court G. APP. (SJ) No.7 of 2005 dt.29-01-2013
IN THE HIGH COURT OF JUDICATURE AT PATNA
Govt. Appeal (SJ) No.7 of 2005
(Against the judgment and order of acquittal passed by the 2nd Additional Sessions
Judge, East Champaran, Motihari in N.D.P.S. Case No. 26 of 1999 of 2002/2004.)
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State Thru. Union Of India
.... .... Appellant/s
Versus
1. Krishna Prasad Choudhary
2. Ajay Kumar Das
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Dwivedy Surendra-CGC- Union of India (Customs)
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH
ORAL JUDGMENT
Date: 29-01-2013
Mandhata Singh, J. 1. Complaint filed by Union of India through Jai
Prakash Das, Inspector Custom (P) Division, Motihari, in brief, is that on
01.5.2002Anil Kumar Sinha, S.I. Bihar Excise Check Post, Motihari vide his letter dated 01.5.2002 to the Assistant Commissioner Custom (P), Motihari handed over 18 kilograms of Nepali Ganja and ninety (90) kilograms of Sugar in two gunny bags along with one recovery witness Bal Mukund Prasad and accused Krishna Prasad Choudhary under the direction of District Magistrate, Motihari. All these goods and persons were handed over to Customs Department for further follow up action. Further on instruction of Assistant Commissioner Custom (P), Motihari, seizure formalities were done and voluntary statement and interrogatory statement of accused Krishna Prasad Choudhary was recorded leading the fact that articles were carried by the accused Krishna Prasad Choudhary in a bus of Bihar State Road Transport Corporation bearing its registration no. BR-IP- 5495, but those goods were of accused Ajay Kumar Das, S.I. Bihar State Patna High Court G. APP. (SJ) No.7 of 2005 dt.29-01-2013 Excise, Raxaul, East Champaran. Accused Krishna Prasad Choudhary was asked by him to deliver those goods (articles) at his residence at Patna. Finding no material against Ajay Kumar Das, complaint was filed against accused Krishna Prasad Choudhary only. Cognizance taken under Sections 23 and 29 of the Narcotic Drugs & Psychotropic Substances (N.D.P.S.) Act and charge is also framed under both the sections. Accused Ajay Kumar Das is summoned under Section 319 of the Cr. P. C. and faced trial along with the accused Krishna Prasad Choudhary.
2. After concluding the trial learned Special Judge- Cum-2nd Additional Sessions Judge, Motihari has acquitted both the accused persons of the charged under Sections 23 and 29 of the Narcotic Drugs & Psychotropic Substances Act.
3. In all fourteen (14) witnesses are examined on behalf of the prosecution and they are PW-1 Raj Kumar Mahto, PW-2 Jay Prakash Das, PW-3 Banaras Ram, PW-4 Yogendra Parai @ Yogendra Baraik, PW-5 Gopal Kumar Verma, PW-6 Gaurishankar Upadhyay, PW-7 Rajendra Sah, PW-8 Nagendra Prasad, PW-9 Anil Kumar Sinha, PW-10 Lallan Kumar, PW-11 Barmeshwar Prasad, PW-12 Kishore Ram, PW-13 Bashisht Pandey and PW-14 Chanchal Prasad.
4. Seizure of Ganja from possession of accused/ O.Ps. is doubted and disbelieved by the trial Court. Admittedly, accused/ O.P. Ajay Kumar Das was not present at the time when seizure was made from the bus. No doubt, Krishna Prasad Choudhary accused/ O.P. no.1 was present in the bus. Bus was raided by officials of State Excise Department and then only handed over to custom officials under the direction of the District Magistrate, Motihari. There is single witness of Excise Department Patna High Court G. APP. (SJ) No.7 of 2005 dt.29-01-2013 namely PW-9 to state the recovery if from accused Krishna Prasad Chaudhary.
5. Another witness namely PW-2 from Custom Department is there to state that a written confession was handed over by this Krishna Prasad Choudhary showing his own involvement and involvement of accused Ajay Kumar Das as he was carrying seized Sugar and Ganja for accused Ajay Kumar Das to be carried to his Patna residence. One witness also is there namely PW-3 to state that he recorded the interrogatory statement of accused Krishna Prasad Choudhary (Exhibit-
9).
6. PW-9 states that a bus bearing its registration no.BR-IP-5495 from Muzaffarpur side reached Excise Check Post. At that time, A.S.I. on duty was present there and searched the bus, in that continuation seized Sugar and Ganja was recovered in two gunny bags from dickey of the bus. Later on, query from Bus Conductor and others, this accused was produced that he was carrying seized articles. Conductor or any of bus staff is not examined in the case to state that seized Sugar and Ganja in bags was carrying by accused Krishna Prasad Choudhary.
7. So, the only material (evidence) remains in the case confession, if any, was made by accused Krishna Prasad Choudhary through Exhibit-5 or Exhibit-8. Exhibit-5 is voluntary written confession and Exhibit-8 is interrogatory statement recorded by PW-3 could be evidence in the case on the point of possession, but this much of the circumstance has not been put to accused/ O.P. Krishna Prasad Choudhary even to explain under Section 313 of the Cr. P. C. if such confession was made on his behalf in absence of which there can be no evidentiary value Patna High Court G. APP. (SJ) No.7 of 2005 dt.29-01-2013 of Exhibit-5 or Exhibit-8.
8. Name of accused/ O.P.2 has appeared in statement of accused Krishna Prasad Choudhary, once his involvement is doubted in absence of material (evidence) that cannot be extended for involvement of accused Ajay Kumar Das assuming inculpatory confessional statement. So, the materials appeared and discussed do not justify to interfere the conclusion reached by the trial Court.
9. Accordingly, this Government Appeal is hereby dismissed.
(Mandhata Singh, J) Patna High Court, Patna Dated-29.01.2013 Vikash/N.A.F.R.