Patna High Court
Tulik Ray @ Tulika Thapa And Anr vs The State Of Bihar And Ors on 18 July, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.539 of 2019
In
CRIMINAL APPEAL (DB) No.808 of 2018
Arising Out of PS. Case No.-5 Year-2015 Thana- D.R.I District- Muzaffarpur
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1. Tulik Ray @ Tulika Thapa and Anr Babloo Ray Resident o village-
Ishlampur Milanpally, P.O - Islampur, ( Siliguri ), Dist- North Dinajpur
2. Prasannjit Roy Late Pratab Roy Resident of Pushpanjali Appartment,
Matigara, Darjeeling- 734011, West Bengal
... ... Appellant/s
Versus
1. The State of Bihar
2. The Union of India (New Delhi) New Delhi
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Arun Kr. Gupta, Advocate
For the Respondent/s : Mr. Ram Tujabh Singh, CGC
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 18-07-2024
This appeal has been preferred by the
appellants/convicts under Section 374(2) of the Code of
Criminal Procedure (hereinafter referred to as 'the Code')
challenging the judgment of conviction dated 06.12.2017
and order of sentence dated 13.12.2017 passed by learned
1st Additional Sessions Judge, Muzaffarpur in Trial No. 74 of
2016 (arising out of D.R.I. Case No. 05 of 2015), whereby
the concerned Trial Court has convicted the appellant/convict
Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024
2/20
for the offence punishable under Section 20(b) (ii) (c) and
23 (c) of the Narcotic Drugs and Psychotropic Substances
Act (in short 'NDPS') and they have been sentenced to
undergo rigorous imprisonment for ten years and fine of Rs.
1,00,000/- and in default of payment of fine, further
undergo simple imprisonment for two months for the offence
punishable under Section 20(b) (ii) (c) of the NDPS Act and
rigorous imprisonment for ten years and fine of Rs.
1,00,000/- and in default of payment of fine, further
undergo simple imprisonment for two months for the offence
punishable under Section 23 (c) of the NDPS Act. All
aforesaid sentences ordered to run concurrently.
2. The case of prosecution as speaks through
complaint petition (D.R.I. Case No. 05 of 2015), lodged by
the complainant namely Ashutosh Kumar/P.W. 1 alleging
therein inter alia that on 13.07.2015 at about 6:40 PM, he
alongwith other Police/SSB personnels intercepted a white
colour Mahindra Varieto Car coming from Darbhanga side, in
which a male and a female were present and on
interception, person driving the car disclosed himself as the
Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024
3/20
appellant no. 2, while the lady sitting therein disclosed her
name as appellant no. 1 and on search of the dicky, some
packets were found filled with ganja, a narcotic substance.
Accordingly, seizure list pertaining to all 38 packets of ganja
weighing 200 kilograms was prepared and sample from
each packet, after mixing up in two packets each of 24
grams, were prepared and marked with seal.
3. On the basis of aforesaid complaint, the police
registered a case as D.R.I. Case No. 5 of 2015 dated
22.12.2015for the offence under Sections 20(b)(ii)(c) and 23(c) of the NDPS Act, where after the investigation, the police submitted charge-sheet.
4. The learned Sessions Judge, being Court of original jurisdiction after perusal of record and materials collected during the course of investigation, took cognizance for the offences under Sections 20(b)(ii)(c) and 23(c) of the NDPS Act and transferred this case to the Court of 1 st Additional Sessions Judge, Muzaffarpur for trial and disposal.
5. The learned trial court on the basis of materials collected during investigation, framed charges against both Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 4/20 appellants/convict on 19.02.2016 for the offences under Sections 20 and 23 of the NDPS Act 1985, which they pleaded "not guilty" and claimed trial.
6. To substantiate its case, the prosecution has examined altogether six witnesses. They are:-
P.W. No(s). Name
P.W. 1 Ashutosh Kumar
(complainant)
P.W. 2 Deepak
Kumar
Syed Ali
P.W. 3 Abbas
Hussain Official
Witnesses
P.W. 4 Rupali More
P.W. 5 Utpal Ghosh
P.W. 6 Raghunandan
Kumar
7. Apart from the oral evidence, the prosecution has also relied upon following documents/exhibits in order to prove the charges:-
Exhibit No(s). List of documents
Exhibit-1 Seizure List
Exhibit-2 Inventory Report
Exhibit-3 Panchnama
Exhibit-4 Statement of Prosenjit Roy
Exhibit-5 Statement of Tulika Ray.
Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 5/20
8. On the basis of evidence as surfaced during the trial, the learned trial court has examined the appellants/accused under Section 313 of the Code, where they completely denied their involvement by denying the incriminating evidences surfaced during the trial and stated that they were implicated with this case falsely and claimed their innocence.
9. No witness was examined by appellants/convict during the trial in their defence and further no documents were also exhibited in support.
10. Taking note of the evidence as surfaced during the trial and the arguments as advanced by the parties, the learned Trial Court has convicted both the appellants/convicts for the offences under Sections 20(b)(ii)
(c) and 23(c) of the NDPS Act and sentenced them in the manner as stated above.
11. Being aggrieved with the aforesaid judgment of conviction and order of sentence, the appellants/convict has preferred the present appeal.
Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 6/20
12. Hence, the present appeal.
Argument on behalf of the appellant/convict:
13. Learned counsel appearing on behalf of appellants/convict submitted that from the perusal of depositions of prosecution witnesses, it clearly appears that mandatory provisions of law as to search the vehicle was not followed. It is not a case of personal search. It is pointed out that seizure list witnesses are official witness being personnel from same department, who deposed before the trial court that the seizure list was not prepared at the place of recovery rather it was prepared in office. It is also pointed out that there were 38 packets of ganja out of which only 2 packets of samples were prepared, each of 24 grams after mixing all packets and on this ground alone conviction as recorded by learned trial court is required to be set aside. It is also pointed out that prosecution witnesses even failed to furnish the registration number and other details of vehicle from which alleged ganja was recovered. It is also pointed out that Section 52 of the NDPS Act also not appears to be complied in the present case. In support of his submissions Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 7/20 learned counsel relied upon the legal report of Supreme Court in the case of Mohammed Khalid and Another Vs. The State of Telangana as reported through (2024) 5 SCC 393.
14. Learned counsel also relied upon the legal report of High Court of Mumbai, as reported through Javed A Bhatt Vs. Union of India, 2007 Cri L J 3145, wherein it has been held as under :-
"In the case at hand, the prosecution did not sent all the pieces either in the form of cigars or Hats for analysis but the prosecution remained satisfied only by sending some of such pieces weighing about 50 grams and therefore, applying the principle laid down by the Apex Court it has to be concluded that what the accused was found with, was only 50 grams of charas/hasis and not the entire quantity of 380 grams as contended by the prosecution and that is the inference with has got to be drawn, as drawn by the Apex Court, upon the failure of the prosecution to send all the cigars or flats found with the accused."
Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 8/20 Argument on behalf of State
15. Learned APP appearing on behalf of respondent-State, while opposing the appeal submitted that huge quantity of ganja was recovered from the appellants/convict and mere on the ground that recovery was not supported by independent witnesses conviction recorded by learned trial court cannot be set aside. It is fairly conceded that only 2 samples were drawn after mixing 38 packets of Ganja.
16. I have perused the trial court records carefully and gone through the evidences available on record and also considered the rival submissions as canvassed by learned counsel appearing on behalf of the parties.
17. As to re-appreciate the evidences, while disposing the present appeal, it is apposite to discuss the evidences available on record, which are as under :-
18. P.W.-1 Ashutosh Kumar, complainant of this case stated in his deposition that Rupali More/P.W. 4 & Utpal Ghosh/P.W. 5 both are independent witnesses and in his presence recovery was made but it appears from their Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 9/20 deposition that both are SSB Officials. It also appears from his deposition that for further formal proceedings, appellants/convicts and both witnesses, alongwith seized vehicle were brought to the office, where formal search was made. It appears from his deposition that formal search was not made at the place of recovery for the reason as public/crowd gathered near there. It also appears from his deposition that 38 packets of ganja were seized having total total of 200 kilograms and after taking sample from each packet it was mixed up and thereafter only 2 sample packets were made each of 24 grams were prepared and marked as A & B. He identified his signature alongwith signature of independent witnesses and on his identification seizure list was exhibited as Exhibit No. 1. He also identified the signature of appellants/convicts and both witnesses, which on his identification, exhibited as Exhibit No. 2. He recorded the confessional statement of appellants/convict under Section 67 of the NDPS Act, which on his identification was exhibited as Exhibit No. 4 & 5, respectively. He did not appear to disclose the name of vehicle from which Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 10/20 alleged ganja was seized in his examination-in-chief. He categorically admitted that panchnama was prepared in office and not at the place of the recovery. Search of appellants/convict was also not made at the place of occurrence, rather at office. As per his deposition ganja was recovered from the vehicle.
19. P.W.-2 Deepak Kumar, who stated almost same facts as deposed by P.W. 1. He also deposed regarding mixing of samples and thereafter preparing only 2 sample packets each of 24 grams. It was deposed by him that remaining ganja was deposited with Custom Godown, Muzaffarnagar after sealing it. He was the person who constituted the raiding party. He categorically stated that no attempt was made for searching independent witnesses despite of its availability.
20. P.W.-3 Syed Ali Abbas Hussain, who also supported the recovery of contraband from the vehicle occupied by appellants/convict. It was stated by him that appellant no. 2 was driving the car and appellant no. 1 was sitting at the rear seat. He also deposed that seizure list was Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 11/20 prepared at office and not at the place of occurrence.
21. P.W.-4 Rupali More also supported the recovery of ganja from vehicle and she is also one of the seizure list witness, who searched appellant/convict Tulik Ray @ Tulika Thapa. It appears from her deposition that she received information, while she was in office thereafter she proceeded for the place of recovery. She went there under oral instructions. She failed to depose the name of officer who checked the diccky of the car. She failed to depose the number of vehicle. It was specifically stated by her that ganja was not weighed at the place of occurrence. It was also stated by her that paper work relating to the present recovery was done at office and she signed all the papers in office itself, contrary to the depositions of other prosecution witnesses, she deposed that no public was available at the place of recovery.
22. P.W.-5 Utpal Ghosh, who also deposed on the same line that of P.W. 4. He also stated being seizure list witness arrived at the place of recovery under oral instructions. He arrived at the place of recovery at about Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 12/20 6:00 PM. He also failed to depose about the particulars of alleged vehicle. He categorically stated that at the place of occurrence he failed to see packet which was open and it was just seen. He further stated that only 2-4 packets were opened there. He also failed to disclose that whether seized material was sealed or not. It was said that seizure list, panchnama and all paper work was carried out in the office. He also stated that no public was present at the place of recovery.
23. P.W.-6 Raghunandan Kumar who brought material exhibit in envelope, which was sealed. It is stated that remaining Ganja was destroyed on 18.02.2016 as per destruction chart, showing it at serial no. 4. He identified his signature on destruction chart and upon his identification it was exhibited as Exhibit No. 9. He is not seizure list witness.
24. Learned counsel further submitted that compliance of Section 43 read with Section 49 of the NDPS Act not appears to be followed in the present case.
"43. Power of seizure and arrest in public place.
--Any officer of any of the departments mentioned in section 42 may--
(a) seize in any public place or in transit, any narcotic Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 13/20 drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation.--For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
49. Power to stop and search conveyance.--Any officer authorised under section 42, may, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance 2 [or controlled substance], in respect of which he suspects that any provision of this Act has been, or is being, or is about to be, contravened at any time, stop such animal or conveyance, or, in the case of an aircraft, compel it to land and--
(a) rummage and search the conveyance or part thereof;
(b) examine and search any goods on the animal or in the conveyance;
(c) if it becomes necessary to stop the animal or the Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 14/20 conveyance, he may use all lawful means for stopping it, and where such means fail, the animal or the conveyance may be fired upon."
Discussion & Conclusion
25. From the deposition of all prosecution witnesses including informant it nowhere appears that compliance of Section 43 read with Section 49 was made as recovery was made from the vehicle. It further appears from their deposition that none of the prosecution witnesses examined during trial even disclosed the registration number of the vehicle from which alleged ganja was recovered. It also appears from the depositions that out of 38 packets only 2 packets of sample was made after mixing each of 24 grams and it was sent for forensic examination, which is against established principle of law, rather sample was to be taken from each packet separately and sent for forensic examination. It also appears from the depositions of P.W. 4 Rupali More and P.W. 5 Utpal Ghosh, respectively that they are SSB Officials and under oral instructions visited the place of recovery and became witness of seizure. It also appears from the depositions P.W. 1, P.W. 2 & P.W. 3 that entire Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 15/20 paper work was completed at office and not at the place of recovery, where nothing appears to be seized and sealed at the place of recovery, rather prosecution witnesses said that due to crowd at the place of recovery, alleged vehicle was brought to office.
26. Thereafter, it is clear that despite availability of independent witnesses, they were not considered as witness. P.W. 4 & P.W. 5 being official witnesses cannot be denied to be interested witness of the present case. In want of registration number of alleged vehicle it cannot be said that recovery was made from the conscious physical possession of this appellants/convict. In this context it would be appropriate to reproduce para no. 6 of the Jitendra and Another Vs. State of M.P. as reported in (2004) 10 SCC 562, which reads as under:-
"6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 16/20 as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross- examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non- examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far- fetched."
27. It also appears from the deposition of prosecution witnessed that Standing Instruction "No. 1 of 1988" dated 15.03.1988 of Narcotics Control Bureau, Government of India issued under Section 52 of the Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 17/20 N.D.P.S. Act prescribes the detailed procedure for sampling, sealing and despatching the seized sample to the laboratory for test. Clauses 1.4, 1.5, 1.6 and 1.9 of the Standing Instruction No. 1 of 1988 dated 15.03.1998 read as under:
"1.4 If the drugs seized are found in packages/containers, the same should be serially numbered for purposes of identification. In case the drugs are found in loose form, the same should be arranged to be packed in unit containers of uniform size and serial numbers should be assigned to each package/ container. Besides the serial numbers, the gross and net weight, particular of the drug and the date of seizure should invariably be indicated on the packages. In case sufficient space is not available for recording the above information on the package, a Card Board label, should be affixed with a seal of the seizing officer and on this Card Board label, the above details should be recorded.
1.5 Place and time of drawal of sample Samples from the Narcotic Drugs and Psychotropic Substances seized must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 18/20 drug has been recovered, and mention to this effect should invariably be made in the panch nama drawn on the spot.
1.6 Quantity of different drugs required in the sample The Quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn.
1.9 It needs no emphasis that all samples must be drawn and sealed; in the presence of the accused, Panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person, from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the duplicate of each of the samples."
Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 19/20
28. In the legal report of Hon'ble Supreme Court in the case of State of Kerala & Ors. Vs. Kurian Abraham (P) Ltd. & Anr. as reported in [(2008) 3 SCC 582], following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan [(2004) 10 SCC 1] held that statutory instructions are mandatory in nature.
29. In view of aforesaid facts and circumstances it appears that prosecution failed to establish its case regarding recovery of 200 kilograms of the Ganja from the possession of appellants/convict beyond reasonable doubt.
30. Accordingly, the appeal stands allowed.
31. The impugned judgment of conviction dated 06.12.2017 and order of sentence dated 13.12.2017 passed by learned 1st Additional Sessions Judge, Muzaffarpur in Trial No. 74 of 2016 (arising out of D.R.I. Case No. 05 of 2015) is, hereby, set aside. Both above named appellants are acquitted from the charges levelled against them, by giving benefit of doubt.
32. Appellant no. 2 namely Prasannjit Roy is on bail, he is discharged from liabilities of bail bonds.
Patna High Court CR. APP (SJ) No.539 of 2019 dt.18-07-2024 20/20
33. Since the appellant no. 1 namely Tulik Ray @ Tulika Thapa is in custody in connection with this case, she is directed to be released forthwith, if not required in any other case.
34. Office is directed to send back the lower court records along with a copy of the judgment to the court below forthwith.
(Chandra Shekhar Jha, J.) S.Tripathi/-
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