Patna High Court
Navin Kumar Singh vs The State Of Bihar on 23 March, 2012
Author: Ashwani Kumar Singh
Bench: Navaniti Prasad Singh, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.456 of 2009
Against the judgment of conviction and order of sentence, dated
23rd March, 2009 passed in Special Case No. 62 of 2006 arising out
of Srikrishnapuri P.S. Case No. 185 of 2006 passed by the learned
Additional Sessions Judge-IX, Patna.
===========================================================
Raj Kumar Singh, son of Sri Dwarikanath Singh, resident of village-Englishpur,
P.S.-Barhara, District-Bhojpur. .... .... Appellant
Versus
The State of Bihar .... .... Respondent
with
Criminal Appeal (DB) No. 546 of 2009.
===========================================================
Navin Kumar Singh, son of Surendra Prasad Singh, resident of village-Rajapur,
P.S.-Koilwar, District-Bhojpur. .... .... Appellant
Versus
The State of Bihar .... .... Respondent
===========================================================
Appearance :
(In CR. APP (DB) No. 456 of 2009)
For the Appellant : Mr. Farooque Ahmad Khan, Adv.
Mr. K.C.Choudhary, Adv.
Mr. Thakur Brajesh Singh, Adv.
For the Respondent : Mr. Ashwini Kumar Sinha, APP.
(In CR. APP (DB) No. 546 of 2009)
For the Appellant : Mr. Jitendra Singh, Sr. Adv.
Mr. Kamal Kishor Singh, Adv.
Mr. Tej Pratap Singh, Adv.
For the Respondent : Mr. Ashwini Kumar Sinha, APP.
===========================================================
CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH
and
Patna High Court CR. APP (DB) No.456 of 2009 dt.23-03-2012 2
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HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)
***********
These two appeals arise out of the same judgment and order of
conviction and sentence dated 23rd of March, 2009, passed by the learned
Additional Sessions Judge-IX, Patna in Special Case No. 62 of 2006 arising out
of Srikrishnapuri P.S. Case No. 185 of 2006.
2. In Cr. Appeal (DB) No. 456 of 2009 appellant Raj Kumar
Singh has been convicted under Section 21(b) of the NDPS Act and has been
sentenced to undergo R.I. for 7 years and a fine of Rs. 70,000/-. In lieu of default
of payment of fine, he has been directed to further undergo R.I. for one year.
3. In Cr. Appeal (DB) No. 546 of 2009, the appellant Navin
Kumar Singh has been convicted under Section 21(c) of N.D.P.S. Act and
Section 489C of the Indian Penal Code and has been sentenced to undergo R.I.
for 15 years and a fine of Rs. 1.5 lakh under Section 21(c) of the N.D.P.S. Act.
In lieu of default of payment of fine he has been further directed to undergo R.I.
for 3 years. He has been sentenced to undergo R.I. for 5 years and a fine of Rs.
5,000/- for the offence under Section 489C of the Indian Penal Code. In lieu of
default of payment of fine, he has been directed further to undergo S.I. for 3
months. However, both the sentences have been ordered to run concurrently.
4. The prosecution case is based upon the written report of
P.W.-4 Madan Kishore Singh, Inspector of Police-cum-Officer-in-Charge of
Srikrishnapuri police station. In his written report dated 11.11.2006 addressed to
the learned Chief Judicial Magistrate, Patna, it has been alleged inter alia that on
the same date at about 7.45 a.m., he received a confidential information that two
persons were standing with a motorcycle near the northern entrance gate of the
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S.K. Puri children's park. They belong to a gang dealing in smack and if
apprehended they can lead to exposure of a big gang dealing in narcotics. On
receipt of such information, a station diary entry was made and the informant
proceeded along with the police party from the police station to children's park.
When they reached near the northern gate of children's park, two persons were
found present there, one of whom was sitting on the parked motorcycle and other
was standing near the motorcycle. They were talking to each other. When the
informant inquired from them about their identity and the purpose for which they
were there, they disclosed their names as Navin Kumar Singh and Raj Kumar
Singh. Navin Kumar Singh was the person sitting on the motorcycle and he
claimed to be the owner of the vehicle. On demand, he could not produce any
paper or document in order to prove his ownership of the vehicle in question.
They also stated that they were waiting for some one who was likely to come to
meet them. But, on inquiry, they did not disclose the name of the person for
whom they were waiting. It has also been stated in the written report that since
the information was that they belong to a gang dealing in Narcotics, it was
deemed necessary to effect the search in presence of a Magistrate and, as such,
they were brought to Srikrishnapuri police station and Constables were asked to
keep watch over them. The informant himself proceeded to the office of Sub-
Divisional Officer, Patna Sadar and submitted an application for deputation of a
Magistrate in order to carry out the search of the detained accused persons. One
Laxman Bhagat, an Executive Magistrate, was deputed for the said purpose.
Both the informant and the Executive Magistrate then came to the Police Station
and in presence of the Executive Magistrate as well as in presence of local
witnesses Sanjeet Kumar Singh (P.W.-2) and Ashok Kumar (P.W.-3) a search
was carried out. From the possession of appellant Raj Kumar Singh two packets
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weighing 10 gm and 5 gm said to be smack was recovered. Upon search of
appellant Navin Kumar Singh, 5 currency notes of Rs. 100/- each and 2 currency
notes of Rs. 50/- each and some photographs were recovered. Out of the said
currency notes of Rs. 100/-, two sets of Rs. 100/- were found of identical
numbers. Similarly, two currency notes of Rs. 50/- denominations were also
found to be of identical number. Further, on search of the motorcycle belonging
to appellant Navin Kumar Singh and tool box of which was opened from the key
found in possession of Navin Kumar Singh as also from beneath the seat
altogether 9 plastic packets and 3 paper packets containing yellowish powder
weighing 7.5 gm said to be smack was recovered. It has also been alleged that
apart from the aforesaid articles, some other chemical kept in a white plastic box
was also found, regarding which, on inquiry the accused persons told that the
same was used to aggravate and enhance the effect of smack. From the
motorcycle in question weights used for measurement varying from 1 gram to
100 gram were also recovered and seizure list of the articles recovered from the
person and possession of the two appellants as also from the tool box and from
beneath the seat of the motorcycle in question was prepared. The accused
persons confessed in presence of the Magistrate and the witnesses that they got
the articles in question from one Chhathu Lal Paswan of Ara, a notorious trader
of smack, for whose arrest a reward of Rs. 1,00,000/- was announced and who
was detained by Ara police a week ago and was remanded to judicial custody.
They also confessed their involvement in business of smack and circulation of
fake currency at the behest of said Chhathu Lal Paswan. Chhathu Lal Paswan
had assured them that if they succeed in circulating the fake currency said to
have been recovered from them, he would give them bigger consignment of
currency notes. The appellants also revealed name of Mantu Rai of Digha, Bablu
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Rai of Rajapul, Siddhu of Sipara (Jakkanpur) and one Sanjay of Rukanpura,
Bailey Road, who were also involved in dealing with narcotic drugs and fake
currency circulation.
5. On the basis of the aforesaid, written statement marked as
Exhibit-2, a formal F.I.R. marked as Exhibit-2/1 being Srikrishnapuri P.S. Case
No. 185 dated 11.11.2006 was registered under Sections 489B, 489C/34 of the
Indian Penal Code, Sections 8, 21, 27(a), 29 and 32B of the N.D.P.S. Act against
the appellants and investigation was handed over to P.W.-6 Narendra Sharma, a
Sub-Inspector of Police posted in Srikrishnapuri Police Station. The police
conducted investigation and on completion of investigation submitted charge
sheet against the appellants on 9.2.2007 under Sections 414, 489B, 489C/34 of
the Indian Penal Code and Sections 8, 21, 27(a), 29 and 32B of the N.D.P.S. Act.
The court below took cognizance of the offence and after supply of police paper,
charges were framed. Both the appellants were charged for the offence under
Sections 21(c), 27(a), 29 and 32 of the N.D.P.S. Act. The appellant Navin Kumar
Singh apart from being charged under the provisions of N.D.P.S. Act was also
separately charged for the offence under Sections 489B and 489C of the Indian
Penal Code. The appellants pleaded not guilty to the charges and claimed to be
tried. Accordingly, the trial commenced. In course of trial, altogether seven
witnesses were examined on behalf of the prosecution in order to prove the
charges.
6. P.W.-1, an independent witness stated in his examination-in-
chief that he was completely ignorant about the prosecution case. His statement
was never recorded by police in course of investigation. At this stage, he was
declared hostile by the prosecution. He was cross-examined by the Special
Public Prosecutor. He denied the suggestion of the prosecution that on the date
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of occurrence at about 1 p.m. in his presence and in presence of seizure list
witnesses and the Executive Magistrate incriminating articles were recovered
and on the order of the informant he had taken weight of the incriminating
articles.
7. P.W.-2 Sanjeet Kumar Singh though admitted his
signature on the search-cum-seizure list, which was marked Exhibit-1 but denied
any search and seizure made from the appellants in his presence. He stated that
on the instruction of the officials of Srikrishnapuri Police Station, he had put his
signature. At this stage, he was also declared hostile by the Special Public
Prosecutor and cross-examined by him. He denied the suggestion of deposing
falsely.
8. P.W.-3 Ashok Kumar also proved his signature on the
search-cum-seizure list which was marked as Exhibit-1/1 but like P.W.-2 he also
denied any recovery being made from the appellants in his presence. At this
stage, he was also declared hostile and upon being cross-examined by the
Special Public Prosecutor denied the suggestion that he made false deposition in
collusion with the accused persons.
9. P.W.-4 Madan Kishore Singh is the informant of the case.
At the relevant time, he was Inspector-cum-Officer-in-Charge of the concerned
police station. In his examination-in-chief, he has reiterated the facts stated in the
F.I.R. with slight variation. In the F.I.R., it is categorically stated that Navin
Kumar Singh was sitting on the motorcycle and admitted that he was the owner
of the vehicle. However, in court, it is stated that both the accused persons were
found near the motorcycle and they claimed that the motorcycle belonged to
them. Further, in the F.I.R., it is stated that key of the motorcycle was with
appellant Navin Kumar Singh who had opened the tool box but in court it has
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been stated that the key was with appellant Raj Kumar Singh who opened the
tool box of the motorcycle and lifted the seat exposing the incriminating articles
recovered and seized. He has proved the search-cum-seizure list which was
marked Exhibit-1/2. He has stated that a seizure list of the recovered articles was
prepared in presence of the Magistrate and P.W.-2 Sanjeet Kumar Singh and
P.W.-3 Ashok Kumar had put their signatures on the same. Both the appellants
had also put their signature on the seizure list. He has also proved the written
statement, which was marked as Exhibit-2 and the formal F.I.R. which was
marked as Exhibit-2/1. He has stated that the seized articles were sealed in
presence of the Executive Magistrate and was deposited in the Malkhana. In
cross-examination, he admits that none of the seized articles were with him. The
confidential information giving reason to believe that the appellants were
indulged in illegal trade of narcotics was not forwarded to any higher official.
The accused persons were apprehended at about 8-8.15 a.m. on 11.11.2006.
They were brought to the police station. He submitted an application for
deputation of an Executive Magistrate to carry out search and seizure at about 10
a.m. He came back from the S.D.O. office at about 12 in the noon. Till that time,
both the accused were detained in the police station. The motorcycle was also
kept in the premises of the police station. A constable was kept guarding the
motorcycle. Appellant Navin Kumar Singh was brought from the place of
occurrence to the police station on a police Zypsy whereas appellant Raj Kumar
Singh drove the motorcycle in question on which a Constable came together with
him as a pillion rider from the place of occurrence to the police station. The
informant admits that it has not been stated in the F.I.R. as to how the appellants
were brought to the police station. He also admits that the accused persons were
searched at about 1 p.m. on 11.11.2006. Though, he claims that the seized
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articles were sealed immediately but he admits that it has not been stated in the
F.I.R. He also claims that the sealed articles were immediately deposited in the
Malkhana and an entry in this regard may be found in the Malkhana register. The
packets were seized and sealed in presence of P.W.-2 Sanjeet Kumar Singh,
P.W.-3 Ashok Kumar and the Magistrate Laxman Bhagat and their signatures
were taken on the packets. He also states that the sample sent to the Forensic
Science Laboratory was also sealed. The Investigating Officer had sealed the
articles sent to the Forensic Science Laboratory. He did not know as to when the
articles were sent to the Forensic Science Laboratory. He denied the suggestion
that as a matter of fact nothing was recovered from the possession of the
appellants and no search and seizure was made in presence of the Magistrate. He
also denied the suggestion that since an altercation took place near the Children's
Park with the accused persons, he implicated them in a false and fabricated case.
10. P.W.-5 Ram Ishwar Mistri claims that on 11.11.2006 he
was posted as a driver in Srikrishnapuri Police Station. On that day, he was
driving the police Zypsy and in his presence both the appellants were arrested.
The appellant Navin Kumar Singh was brought to the police station on Zypsy
whereas the appellant Raj Kumar Singh came on the motorcycle in question
together with a Constable. In cross-examination, he has stated that on seeing the
police party, the accused persons made no attempt to escape. He further admits
that till the arrival of the Magistrate, the appellants were detained in the police
station under the Guard of a police constable. The motorcycle in question was
kept near the gate of the police station. He also admits that the witnesses who
were called at the time of search and seizure resided within the premises of the
police station. They were staffs of the college within which the police station is
situated. He also admits that during the investigation, in his statement recorded
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by the Investigating Officer, he had not stated that the alleged recovery was
made in his presence.
11. P.W.-6 Narendra Kumar Sharma is the Investigating
Officer of the case. He was entrusted with the investigation pursuant to
preparation of the seizure list and institution of the F.I.R. He recorded statement
of witnesses in course of investigation, inspected the place of occurrence,
recorded the defence statement of the accused persons and forwarded the
accused persons to the court on 12.11.2006. He claims that on 27.12.2006, he
submitted an application before the court concerned for sending the material
exhibit to Forensic Science Laboratory for test. On 29.12.2006 permission was
accorded by the court and on 30.12.2006 the samples were sent to the Forensic
Science Laboratory through Registrar of the court. The forwarding report of the
Registrar, Civil Court, Patna dated 29.12.2006 addressed to the Director,
Forensic Science Laboratory seeking test report of the articles being sent for
examination has been marked as Exhibit-3. The material exhibit sealed by the
Registrar of the court was received by him on 30.12.2006 and was sent to the
Forensic Science Laboratory through Constable Rama Thakur. The fake
currency notes were sent for examination and report to Patna Branch of Reserve
Bank of India, on 7.2.2007 and a report in this regard was received on the same
day. The report was proved with objection as Exhibit-4. He submitted the charge
sheet against the appellants and kept the investigation open as against other
accused persons. In cross-examination, he admits that he did not prepare the
seizure list. He was entrusted with investigation at 2.30 p.m. on 11.11.2006. The
seized articles were never given to him. He did not know as to where it was kept
and there is not mention in the police case diary in this regard. He further admits
that though it is mentioned in paragraph 22 of the case diary that the sample sent
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to the Forensic Science Laboratory was received by him from Malkhana on
27.12.2006but, it is not mentioned anywhere as to whether it was in sealed condition. He has also admitted that he did not examine any person of the locality. He denied the suggestion that the charge sheet was submitted only in order to please the Inspector of Police.
12. P.W.-7 Mahesh Kumar was bodyguard of the informant.
Upon instruction of the informant, he came together with Raj Kumar Singh on the motorcycle in question from the place of occurrence to the police station. The informant went to call a Magistrate after detaining the appellants in his Chamber. The motorcycle was kept in the premises of the police station. In cross- examination, he has stated that key of the motorcycle was seized from appellant Raj Kumar Singh.
13. Mr. Farooque Ahmad Khan, learned counsel appearing on behalf of the appellant Raj Kumar Singh and Mr. Jitendra Singh, learned senior counsel appearing on behalf of the appellant Navin Kumar Singh contends that the prosecution has miserably failed to establish the charges. In support of their contention, they submit that the seizure list witnesses have turned hostile. They have not supported the prosecution story of search and seizure of the incriminating articles either from the possession of the appellants or from the vehicle in question. The only independent witness, P.W.-1 Arvind Kumar has also turned hostile and has not supported the prosecution case. The Magistrate Laxman Bhagat, who is said to have been deputed for the purposes of search and seizure by the Sub-Divisional Officer, Patna and in whose presence it is alleged that the search and seizure was carried out has also not been examined by the prosecution without any explanation in this regard.
14. They further contend that there was gross violation of the Patna High Court CR. APP (DB) No.456 of 2009 dt.23-03-2012 11 11/21 mandatory provisions of the Act. Neither the search and seizure was made in accordance with the Act nor the sample, so sent, to the Forensic Science Laboratory for test, was taken and sealed in accordance with Act. The Forensic Science Laboratory report does not show that sample received were sealed and bore signature of the accused, the Magistrate, the Inspector or the Investigating Officer, the quantity of the articles sent to it nor does it reveal regarding the packets from which the contents of the sample were taken out and sent for examination. The material exhibits were never produced in the court. The currency note was also not produced. Neither of the expert, who gave their report with respect to the narcotic drugs or the currency notes were examined in the court. The Constable Rama Thakur, the messenger who took the sample to the Forensic Science Laboratory has also not been examined in court. The ownership of the motorcycle in question has not been established. It is further submitted that it is not known as to what happened to the several other persons mentioned in the F.I.R. who were of the gang of smack dealers. They have neither been investigated nor chargesheeted.
15. They further contend that the witnesses examined in court states that the key of motorcycle was with appellant Raj Kumar Singh, who opened the tool box and also lifted the seat but in the F.I.R., it has been stated that it was appellant Navin Kumar Singh who was holding the key of motorcycle and had opened the tool box.
16. They further contend that there is no explanation as to why the search and seizure was not made at the place of occurrence by calling the Magistrate and as to why they were detained for five hours in police station when admittedly the motorcycle was kept beyond their reach. There is no explanation for the undue delay in sending the samples for test. Admittedly, the Patna High Court CR. APP (DB) No.456 of 2009 dt.23-03-2012 12 12/21 date of search and seizure is 11.11.2006 and the samples were received in the Forensic Science Laboratory on 30.12.2006
17. We find force in the contention made on behalf of the appellants. The N.D.P.S. Act seeks to achieve control of illegal trade in narcotics which have a detrimental effect on the society, and therefore, contains stringent provisions. Under the normal criminal jurisprudence a person is presumed innocent unless proved guilty. Section 35 of the N.D.P.S. Act presumes a culpable mental state on part of the accused. The onus lies on the accused to prove the fact that he had no such mental state. The courts have therefore leaned heavily in favour of a strict interpretation of the provisions of the N.D.P.S. Act. Even, such provisions of the N.D.P.S. Act which have been held to be directory by the courts, have been held to have their own relevance in the given facts and evidence available in a case, to the extent of vitiating the prosecution case.
18. Sub-section (1) of Section 50 provides that when the Empowered Officer is about to search any suspected person, he shall, if the persons to be searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the purposes.
19. Under Sub-section (2), it is laid down that if such request is made by the suspected person, the officer who is to take the search may detain the suspect until he can be brought before such Gazetted Officer or the Magistrate. It is manifest that if the suspect expresses the desire to be taken to the Gazetted Officer or the Magistrate, the empowered Officer is restrained from effecting the search of the person concerned. He can only detain the suspect for being produced before the Gazetted Officer or the Magistrate, as the case may be.
20. Sub-section (3) lays down that when the person to be Patna High Court CR. APP (DB) No.456 of 2009 dt.23-03-2012 13 13/21 searched is brought before such Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct the search to be made. The mandate of Section 50, thus, is that if the person intended to be searched, expresses to the authorized officer his desire to be taken to the nearest Gazetted Officer or the Magistrate, he cannot be searched till the Gazetted Offcier or the Magistrate, as the case may be, directs the authorized officer to do so.
21. In case of State of Punjab Vs. Baldev Singh, since reported in (1999) 6 SCC 172. The Constitution Bench of the Hon'ble Apex Court has held that the provisions of Sub-section (1) of Section 50 make it imperative for the Empowered Officer to 'inform' the person concerned (suspected) about the existence of his right that if he so requires he shall be searched before a Gazetted Officer or a Magistrate; failure to 'inform' the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before the Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit articles suspect and vitiate the conviction and sentence of a accused where the conviction has been recorded only on the basis of the possession of illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the N.D.P.S. Act.
22. In case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, since reported in (2011) 1 SCC 609. A Constitution Bench of the Hon'ble Apex Court concurred with the views of the earlier Constitution Bench in case of State of Punjab Vs. Baldev Singh (Supra). Relying on the Vijaysinh Chandubha Jadeja Vs. State of Gujarat (Supra). Their Lordships at para 29 and Patna High Court CR. APP (DB) No.456 of 2009 dt.23-03-2012 14 14/21 32 in its relevant extract held as follows:-
"29. .............. we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."
"32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other Patna High Court CR. APP (DB) No.456 of 2009 dt.23-03-2012 15 15/21 officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."
23. It is to be noted here that in the present case apparently the place of occurrence is in the heart of Patna township. The nearest Magistrate was to be found in the district headquarter itself. Admitted position is that the police party was in a Zypsy. The Magistrate could have been brought at the place of occurrence within no time or the appellants could have been taken to the nearest Magistrate within few minutes. There is no reason as to why they were taken to the police station, kept in confinement in Chamber, kept away from the motorcycle in question for almost five hours. There is nothing on record to show that any effort was made to take the appellants to the nearest Gazetted Officer of any departments mentioned in Section 42 of the Act or to the nearest Magistrate in terms of Section 50 of the Act. The recourse adopted by the prosecuting agency to detain the appellants in police station for hours together in the manner noted above gives strength to the allegation of planting or foisting of false case by the law enforcement agency.
24. When we look to the relevant provisions of the N.D.P.S. Act, governing the procedure to be followed by the police after seizure are to be found in Sections 52, 53, 55 and 57. The Investigating Officer cannot totally ignore those provisions and, as such, failure will have bearing on appreciation of evidence regarding the arrest of the accused on seizure of the article.
25. Section 52-A of the N.D.P.S. Act has been inserted by Act 2 of 1989 with effect from 29.5.1989. Section 52-A of the Act reads as follows:-
52-A. Disposal of seized narcotic drugs and psychotropic substances.-
"(1) The Central Government may, having regard to the Patna High Court CR. APP (DB) No.456 of 2009 dt.23-03-2012 16 16/21 hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic substances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purposes of-
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Patna High Court CR. APP (DB) No.456 of 2009 dt.23-03-2012 17 17/21 Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence"
26. Section 52-A of the Act comes into play after recovery of the contraband item. What is curious to note in the present case is the guidelines given in the Act has been given a complete go-bye by the prosecuting agency. Neither any inventory of the seized article was prepared under Section 52-A of the Act, nor the recovered contraband was ever produced before the trial court at the time of trial. It was necessary for the prosecution to establish by cogent evidence that the alleged quantity of smack were seized from the possession of the accused. The best course would have been that the seized materials ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of the seizure list does not discharge the heavy burden which lies on the prosecution particularly where the offence is punishable with a stringent sentence under the Act. Even the seizure list witnesses have turned hostile. The Magistrate before whom the alleged search and seizure is said to have been made has also not been examined in the court and no reasonable explanation has been given by the prosecution for his non- examination. In such circumstance, the seizure list is nothing but a document written by the concerned police officer.
27. Section 55 of the N.D.P.S. Act casts a duty upon the Officer- in-Charge of a Police Station to take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under the Act within the local area of Patna High Court CR. APP (DB) No.456 of 2009 dt.23-03-2012 18 18/21 that police station and which may be delivered to him, pending the orders of the Magistrate. The Officer-in-Charge of the police station should keep the articles in safe custody and allow any officer, who may be accompanied such articles, to put his seal or take sample.
28. Coming to the facts of the present case, we find that P.W.-4 (Madan Kishore Singh) who is informant as well as the Officer-in-Charge of the police station. In cross-examination states that the seized articles were not with him. It was deposited in Malkhana but curiously enough neither the Malkhana Incharge has been examined in this regard nor the Malkhana register has been produced to show as to when the articles seized were deposited in the Malkhana. There is nothing on record to show that the articles seized were sealed and signed by the seizing authority, the accused and the Executive Magistrate concerned. The Investigating Officer of the case, on the other hand, admitted in cross-examination that he had neither seized the contraband nor the same was ever handed over to him. He was not aware as to where those articles were kept. Such a casual approach on the part of the investigating agency creates serious doubt.
29. We further find that though the articles are alleged to have been seized on 11.11.2006 but the same were sent to the Forensic Science Laboratory on 30.12.2006. Of course, it has been stated that an application was made to the court for sending the samples for test to Forensic Science Laboratory on 27.12.2006 for which permission was accorded on 29.12.2006. We do not know under which provision the Investigating Agency was seeking permission of the court for sending the samples to the Forensic Science Laboratory for test. In any case, there is absolutely no explanation for the undue delay caused in sending the samples for test to the Forensic Science Laboratory. The prosecution has not led any evidence whether the Chemical Analyzer received the samples with proper intact seals. The Patna High Court CR. APP (DB) No.456 of 2009 dt.23-03-2012 19 19/21 Forensic Science Laboratory report has been proved in the court as an exhibit in terms of Section 294 of the Code of Criminal Procedure and as per report the paper packet marked as A and the two polythene packets marked as B & C contained orange powdry substance, some yellow powdry substance and some brown powdry substance respectively. Heroin was detected which is a highly addictive intoxicating Narcotic drug. There is nothing to show that the seized Narcotic was kept in seal cover and the paper packet and polythene packets sent to the Registrar of the civil court, Patna were under the seal cover for the purposes of forwarding the same to the Forensic Science Laboratory. Even the Registrar concerned has not been examined in the court to throw any light in this regard. We do not know what happened to the remnants of the samples sent to the Forensic Science Laboratory. The original seal has also not been produced in the court. It is a mystery to whom the seal was entrusted. No explanation, whatsoever has been offered in this behalf though, it is alleged that when the initial recovery was made the recovered articles were sealed. There is nothing on record to show that the seal was also deposited in the Malkhana. There is no explanation, whatsoever, in this regard. The special messenger, who deposited sample in the Forensic Science Laboratory, has also been withheld by the prosecution. The Forensic expert has also not been examined. All these creates doubt whether the sample was even sent to the Chemical Analyzer.
30. We further notice that when the Investigating Officer was not aware as to where the seized articles were kept how could he obtain the samples for sending it to the Forensic Science Laboratory. Further, the initial evidence is that the entire seized articles were sealed in presence of the accused and the witnesses and deposited in the Malkhana. We do not know the quantity of the articles sent to Forensic Science Laboratory for examination. Apparently, the entire seized suspected smack powder would not have been sent to the Forensic Science Patna High Court CR. APP (DB) No.456 of 2009 dt.23-03-2012 20 20/21 Laboratory, if part of it was taken out then, certainly the initial seal, if any, would have been broken. There is nothing on record to show before whom the seal was broken, samples were collected, samples were sealed and the material Exhibits were re-sealed. All these facts create grave suspicion regarding the authenticity and bona fide of the alleged search and seizure. We also find from evidence that the seizure list witnesses as also P.W.-1 who all turned hostile cannot be said to be independent witnesses. They were residing within the premises of S.K. Puri Police Station whereas the appellants were detained at the gate of children's park.
31. We further find from the evidence that the alleged arrest or seizure was never reported to the immediate official superior in terms of Section 57 of the Act in the present case.
32. We find the procedure for investigation, search, seizure, sealing the contraband and sealing the samples have all been made contrary to the provisions of the Act. In such circumstances, the convictions under the N.D.P.S. Act of both the appellants cannot be sustained.
33. For the purposes of conviction of the appellant Navin Kumar Singh under the provisions of the Indian Penal Code, again, we find that the prosecution has not produced the currency notes in the court. There is no explanation for non-production of the same. The report of Assistant General Manager, R.B.I., Patna marked as Ext.-4 (with objection) with respect to genuineness of currency notes becomes meaningless in the light of non-production of the incriminating notes in the court. In the report itself, it has been stated that in his opinion the notes are fake but at the same time it has also been stated that the opinion was only for the purposes of investigation and the report shall not be produced in any court as an evidence. We further find that when the alleged search and seizure itself has been doubted by us, the appellant Navin Kumar Singh cannot Patna High Court CR. APP (DB) No.456 of 2009 dt.23-03-2012 21 21/21 even be held guilty under Section 489C of the Indian Penal Code. Thus, in the background of the facts discussed above, we find it difficult to uphold the conviction even under Section 489C of the IPC as the prosecution has failed to prove its case beyond reasonable doubt.
34. In the facts and circumstances of the case, the judgment and order of conviction and sentence of the appellants is set aside. The appellants who are in jail are directed to be released forthwith, if not required in any other case.
35. In the result, both the appeals stand allowed (Ashwani Kumar Singh, J) Navaniti Prasad Singh, J. I agree.
The Patna High Court (Navaniti Prasad Singh, J) The 23rd of March, 2012 Sanjeet/AFR