Patna High Court - Orders
Md. Furkan vs State Of Bihar & Anr on 27 April, 2017
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal, Sanjay Kumar
Patna High Court CR. APP (DB) No.1147 of 2016 (7) dt.27-04-2017
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.1147 of 2016
Arising Out of PS.Case No. -15 Year- 2014 Thana -GOVERNMENT OFFICIAL COMP. District-
PATNA
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1. Md. Furkan Son of Amusana, Resident of village- Thoubal Mosising
Kangjaibung, P.O, & P.S.- thoubal, District- Thoubal (Manipur)
.... .... Appellant/s
Versus
1. State of Bihar
2. The intelligence Officer, Office of the Directorate of Revenue
Intelligence (DRI), regianal Unit, Patna.
.... .... Respondent/s
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with
Criminal Appeal (DB) No.1139 of 2016
Arising Out of PS.Case No. -15 Year- 2014 Thana -GOVERNMENT OFFICIAL COMP. District-
PATNA
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1. Md. Khalik Son of Late Md. Nankau Resident of Village- Basawanpur,
Kamrawan, P.S.- Jadpur, District- Barabanki, State- U.P.
.... .... Appellant/s
Versus
1. The Union of India Through Directorate of Revenue Intelligence,
Regional Unit, Patna
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.1060 of 2016
Arising Out of PS.Case No. -null Year- null Thana -null District- PATNA
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1. Md. Jamir Alam Ali Son of Md. Jahur Ali resident of Village- Thoubal
Moijing Awang Laikai, P.O., P.S. and District- Thoubal, State- Manipur.
.... .... Appellant/s
Versus
1. The Union of India Through Directorate of Revenue Intelligence,
Regional Unit, Patna
.... .... Respondent/s
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Appearance :
(In CR. APP (DB) No.1147 of 2016)
For the Appellant/s : Mr. N.K. Agrawal, Sr. Advocate
Mr. Diwakar Upadhyaya
For the Respondent/s : Mr. Sri Ganesh Prasad Jaiswal, APP
For the DRI: : Mrs. Nivedita Nirvikar
Patna High Court CR. APP (DB) No.1147 of 2016 (7) dt.27-04-2017
(In CR. APP (DB) No.1139 of 2016)
For the Appellant/s : Mr. Dr. Brahma Deo Prasad
Mr. Rakesh Kumar
For the U.O.I. : Mr. Manoj Kumar Singh
(In CR. APP (DB) No.1060 of 2016)
For the Appellant/s : Mr. Dr. Brahma Deo Prasad
Mr. Rakesh Kumar
For the Respondent/s : Mr. Sri Satya Narayan Prasad
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
and
HONOURABLE MR. JUSTICE SANJAY KUMAR
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL)
7 27-04-2017We have heard Mr. N.K. Agrawal, Senior Advocate, in support of Cr. Appeal (DB) No. 1146 of 2016, Mr. Prasad in support of Cr. Appeal (DB) No. 1139 of 2016 and Cr. Appeal (DB) No. 1060 of 2016 and Mrs. Nivedita Nirvikar for the Directorate of Revenue Intelligence.
Appellants of these three appeals have prayed for grant of bail after suspending the sentence during the pendency of the appeal. They have been held guilty under Sections 21C, 27 A and 29 of the N.D.P.S. Act (for short 'the Act').
On secret information, the officials of the Department raided one of the rooms of a hotel in Patna wherein the appellants were staying and seized three packets each one held by them. Having effected the search and seizure in presence of the two witnesses of the hotel staff, it was found that each packet contain 619 gms, 613 gms and 613 gms of heroine like substance. The first version of the appellants was taken under Section 67 of Patna High Court CR. APP (DB) No.1147 of 2016 (7) dt.27-04-2017 the Act. They were, accordingly, arrested. The appellants, along with the seized item, were then taken to the nearest office of the DRI where samples were drawn and later sent for chemical analysis wherein the samples drawn from each packet were opined to be narcotics substance.
Mr. Agrawal has submitted that the independent witnesses to the seizure have not been produced. The prosecution has not even cited them as a witness in the charge-sheet. Rests of the witnesses are official witnesses. This creates a serious doubt on the prosecution case. The material exhibits which were retained by the I.O. were not placed before the Court and exhibited. The appellants have remained in custody for more than three years.
Mr. Prasad, Counsel for another set of appeal, submits that in effecting search and seizure, the authority have violated the mandatory provision as contemplated under section 41(2) of the Act.
Mr. Nirvikar, on the other hand, submits that the authorities under the provisions of Section 53 of the Act read with Section 42 of the Act are authorized to effect such arrest and seizure. She has, however, placed the relevant finding of the Trial Court wherefrom it appears that in doing so, the authorities have complied with the mandatory provisions as contemplated under Patna High Court CR. APP (DB) No.1147 of 2016 (7) dt.27-04-2017 Section 50 of the Act.
On a consideration of the submissions made at the Bar and on going through the relevant incriminating materials reflecting from the record including the impugned judgment, we are not inclined to direct release of the appellants on bail. Prayer is rejected.
The submissions that the independent witnesses have not been produced by the prosecution and also the fact that rests of the prosecution witnesses are official witnesses, we are persuaded to grant liberty to the appellants to renew prayer for bail after one year if the appeal is not heard in the meanwhile.
As we have rejected the prayer for bail, the Office will take steps for preparation of the paper book and listing of the case strictly as per seriatim considering the age of incarceration of the appellants.
(Kishore Kumar Mandal, J) (Sanjay Kumar, J) Pankaj/-
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