Patna High Court
Wahid Ansari vs The State Of Bihar on 6 August, 2014
Author: Gopal Prasad
Bench: Gopal Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.79 of 2013
Arising Out of PS.Case No. -13 Year- 2010 Thana -WEST CHAMPARAN GRP CASE District-
-
=========================================================
1. Wahid Ansari S/O Rahman Ansari @ Rahman Mian Resident Of Sikta, P.S-
Sikta, District- West Champaran .... Appellant
Versus
1. The State Of Bihar .... Respondent
With
=========================================================
Criminal Appeal (SJ) No. 110 of 2013
Arising Out of PS.Case No. -13 Year- 2010 Thana -WEST CHAMPARAN GRP CASE District-
-
=========================================================
1. Mohammad Aslam S/O Majid Dewan Resident Of Village- Kathia-Mahia,
P.S.- Kangali, District- West Champaran ....
Appellant
Versus
1. The State Of Bihar .... Respondent
With
=========================================================
Criminal Appeal (SJ) No. 113 of 2013
Arising Out of PS.Case No. -13 Year- 2010 Thana -WEST CHAMPARAN GRP CASE District-
WESTCHAMPARAN(BETTIAH)
=========================================================
1. Md. Ebadullah S/O Md. Safi Resident Of Village- Gad Gamhariya, P.S.-
Kangali, District- West Champaran
2. Moharram Miya S/O Alibas Miya Resident Of Village- Uttar Vahini, P.S.-
Chanpatiya, District- West Champaran
3. Dara Singh S/O Tara Chandra Nepali Resident Of Village- Naraipur, P.S.-
Bagaha -2, District- West Champaran .... Appellants
Versus
1. The State Of Bihar .... Respondent
With
=========================================================
Criminal Appeal (SJ) No. 148 of 2013
Arising Out of PS.Case No. -13 Year- 2010 Thana -WEST CHAMPARAN GRP CASE District-
-
=========================================================
1. Mansoor Alam S/O Late Hafizullah Diwan Resident Of Village- Karhia
Mathia Tola Pokharia, P.S.- Kangli, District- West Champaran ....
Appellant
Versus
1. The State Of Bihar .... Respondent
=========================================================
Appearance :
(In CR. APP (SJ) No. 79 of 2013)
For the Appellant : Mr. Bimlesh Kumar Pandey, Adv.
For the Respondent : Mr. Bipin Kumar, APP
(In CR. APP (SJ) No. 110 of 2013)
For the Appellant : Mr. Umesh Chandra Verma, Adv.
For the Respondent : Mr. S.N. Prasad, APP
(In CR. APP (SJ) No. 113 of 2013)
For the Appellants : Mr. Ram Adya Singh, Adv.
For the Respondent : Mr. Pramod Ranjan APP
Patna High Court CR. APP (SJ) No.79 of 2013 dt.06-08-2014
2
(In CR. APP (SJ) No. 148 of 2013)
For the Appellant : Mr. Asutosh Kumar, Adv.
For the Respondent : Mr. Sujit Kumar Singh, APP
=========================================================
CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD
ORAL JUDGMENT
Date: 06-08-2014
Gopal Prasad, J. All these four appeals are heard together and are being
disposed off by this common judgment as all the four appeals arise
out of the same judgment and order
2. The appellants have been convicted under Sections
20(b) II (C), 21 (C), 22(C) and 23(C) of the Narcotic Drugs and
Psychotropic Substances Act, 1985, (hereinafter referred to as, 'the
Act') and sentenced to undergo rigorous imprisonment for ten years
for each offence and a fine of rupees one lakh and in case of non-
payment of fine to undergo simple imprisonment for two years.
3. The prosecution case is that the informant, Dinesh
Kumar, Assistant Sub Inspector of Police, Shikarpur Police Station,
West Champaran at Bettiah, received information from the
Subdivisional Police Officer, Narkatiyaganj, namely, Md. Abdullah,
on 23.02.2010 at 20.18 hours in the quarter situated at Loco Colony,
Narkatiyaganj, West Champaran at Bettiah, that the business of ganja
and charas is going on there and asked to come to cooperate. On the
said information, the informant along with the Sub Inspector of
Police, Jai Prakash Singh and other police personnel reached at Loco
Colony, Narkatiyaganj, at 20.50 hours and the Subdivisional Police
Officer was present there along with his body guard, Shanker Rai and
Nagendra Kumar Singh and several police personnel and on the
instruction of the Subdivisional Police Officer Quarters No. L97C and
L97D was surrounded and the lock was opened and from Quarter No.
L97C, accused Md. Aslam, Wahid Ansari and Mansoor Alam were
apprehended and from the said room 31 packets of charas each
containing one kilogram substance like charas bond in cello tape were
also recovered and packets of one kilogram each, 75 packets of each
containing nine kilogram, six packet, each containing five kilogram
packed in plastic packets ganja was recovered. The three persons,
Patna High Court CR. APP (SJ) No.79 of 2013 dt.06-08-2014
3
who were apprehended, did not disclose about it or produce any paper
regarding these articles. Thereafter, on search of Quarter No. L97D,
three persons, namely, Dara Singh, Moharram Miya and Md.
Ebadulla, were apprehended from that quarter, two gunny bags, one
containing 21 packets of ganja, weighing about three kilogram each in
all about 26 packets, in other gunny bags 15 packets of ganja each
containing three kilogram were recovered. From another gunny bag
14 packets charas, each containing one kilogram were recovered,
again, in plastic cello tape 16 packets, each containing one kilogram
with charas like substance. However, seizure list was prepared and
the written report was drawn on the report of Dinesh Kumar and there
was endorsement to register a case and a case bearing Narkatiyaganj
Rail P.S. Case No. 13 of 2010, dated 24.02.2010, under Sections
20(6)(II)(C), 22, 23 and 27(A) of the Narcotic Drugs and
Psychotropic Substances Act, 1985, has been lodged.
4. The first information report was recorded at 04.30 p.m.
on 24.02.2010 whereas the occurrence alleged to be of 23.02.2010 in
between 09.00 to 11.00 p.m. After investigation the charge sheet
submitted, the cognizance taken and trial proceeded.
5. During the trial eight witnesses were examined. P.W. 1
is Tarkeshwar Singh, P.W. 2 is Ajay Prasad, P.W. 3 is Harendra
Thakur, P.W. 4 is Shanker Prasad, the four witnesses are said to be
independent witnesses, P.W. 5 is Md. Abdullah, the Subdivisional
Police Officer, P.W. 6 is Dinesh Kumar, the informant, P.W. 7 is
Pramod Kumar, the second investigating officer, who took the charge
of investigation on 07.03.2010, and P.W. 8 is Suresh Paswan, the
investigating officer, who had conducted the investigation till
07.03.2010.
6. During the trial, the documentary evidences produced are Exhibit 1, the seizure list, Exhibits 1/1, ½, 1/3 and ¼ , the signature of the witnesses on the seizure list, Exhibit 2, the written report, Exhibit, the charge sheet, Exhibit 4 the formal first information report, Exhibit 5, the endorsement of the formal first information Patna High Court CR. APP (SJ) No.79 of 2013 dt.06-08-2014 4 report and Exhibit 6, the seizure list.
7. The trial Court, after considering the oral and documentary evidences, convicted and sentenced the appellants, as mentioned above.
8. The learned counsel for the appellants, however, contends that there is no compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, as the informant, P.W. 7, before proceeding for raid or conduct the search and seizure on the information received has not recorded the statement under Section 42(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and also there is no compliance of Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and, hence, it is submitted that non-compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, are fatal conviction comes under the doubt of suspicion. It has, further, been contended that there is violation of Sections 52, 53, 55 and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985. There is no evidence adduced after the search and seizure of the contraband material was sealed properly, kept at malkhana and sample duly taken and sealed for sending to Forensic Science Laboratory. There is no evidence that the said material was sealed on the spot or even at the Police Station. There is no evidence where the seized articles were kept. There is no evidence that the sample sent for chemical examination was ever taken from the each of the packets of seized articles, neither the seized articles were produced in Court or even the photographs of the seized articles produced in accordance with law taken nor it has come in evidence that where the seized articles were kept nor the malakhana register of the Police Station, was produced to show that the seized articles were received in the said Police Station or kept in malkhana. Hence, matter a report of the Forensic Science Laboratory is not reliable to be relied upon to show that the seized articles were contraband.
9. The learned counsel for the State, however, contends Patna High Court CR. APP (SJ) No.79 of 2013 dt.06-08-2014 5 that in the first information report, itself, it is mentioned that the Subdivisional Police Officer was the person on whose instance the informant proceeded and in whose presence the raid was conducted and, hence, the Subdivisional Police Officer was there to conduct the raid, who is a gazetted officer and, then, there is no requirement of compliance of Sections 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985. It has, further, been contended that from the order sheet, dated 05.05.2010 of the lower Court, it is apparent that the investigating officer has filed an application praying therein to permit him to send the sample of the seized material to the Director, Forensic Science Laboratory, Government of Bihar, Patna, for chemical analysis. The prayer was allowed with direction to Mr. B.K. Pathak, Judicial Magistrate, 1st Class, Bettiah, to seal the sample in his presence and the sample received in the Forensic Science Laboratory followed with report of Forensic Science Laboratory.
10. Having regard to the facts and circumstances of the case the question for consideration whether the order of conviction and sentence suffers from any infirmity, illegality or irregularity or not.
11. However, the prosecution case is that the informant, P.W. 6, received an information by the Subdivisional Police Officer to cooperate in the raid and on that information he proceeded along with the party and conducted the raid in two quarters, which were got opened and from each of the quarters three accused persons and three quintal and nineteen kilogram of ganja were recovered in different packets. On the evidence of P.W. 6, it is apparent that six accused persons were apprehended and articles were seized. He in his deposition has, further, stated that all six accused persons and seized articles were sent to Rail Police Station, Narkatiyaganj. He has proved the seizure list and his signature on seizure list. P.Ws. 1 to 4 are seizure list witnesses though they have come to support the prosecution case and they proved their signatures on seizure list, which has been marked as Exhibits 1, 1/1, ½, 1/3 and ¼, but, they Patna High Court CR. APP (SJ) No.79 of 2013 dt.06-08-2014 6 have invariably in their cross examination have stated that no articles were recovered in their presence nor any person was apprehended before them and their signatures was procured at the Police Station.
12. However, P.W. 6, the informant, has stated that on the information of the Subdivisional Police Officer to cooperate in raid, he proceeded, surrounded the two quarters, L97C and L97D, before two independent witnesses, arrested three persons from one quarter and recovered 31 quintal and 19 Kilogram ganja and the persons apprehended were taken to Shikarpur Police Station and seized articles were sent to Rail Police Station Narkatiyaganj with seizure list, prepared before the independent witnesses and proved the seizure list, Exhibit 2, and his signature on seizure list, Exhibit ¼. He has only stated that the articles were seized sent to Rail Police Station, Narkatiyaganj. In cross examination he has specifically stated that the packets which were seized were opened, but, has specifically stated in paragraph 14 of his deposition that the ganja was not sealed at the place of occurrence nor he took the signatures or thumb impressions of the accused persons on the packets nor he made any sign on 31 packets, which were packed in a gunny bag, but, it was not sealed. Further in paragraph neither 18 of his cross examination he has stated that the articles seized from second quarter were also not sealed nor signatures of the accused persons were taken on any packet.
13. P.W. 8 is the first investigating officer. He has proved Exhibit 4, his signature on the formal first information report, but, Exhibit 5 is the endorsement of the report and written report on the basis of which the first information report drawn. Exhibit 6 is the signature on the seizure list and it is stated that he started the investigation on 24.02.2010, recorded the seizure list in the diary and recorded the statement of the informant. He stated that on the direction of the Superintendent of Police, he handed over the charge to another investigating officer. However, in his entire evidence he has not even stated a single word about the seizure and sealing of the articles nor has stated where the seized articles were kept and he has Patna High Court CR. APP (SJ) No.79 of 2013 dt.06-08-2014 7 neither mentioned anything about the seized articles whether sealed or not or where the sealed articles were kept nor he has stated that he has sent it to the Forensic Science Laboratory.
14. P.W. 7 is the second investigating officer, who has stated that he assumed the charge of the investigation on 07.03.2010 and stated that with the permission of the Session's Judge, he sent the seized articles to the Forensic Science Laboratory. He has stated in his examination-in-chief that he got the supervision note of the Subdivisional Police Officer, submitted the charge sheet under Sections 21, 22, 23 and 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985. However, in his cross examination he has stated that the seized articles were kept in Rail Police Station, Narkatiyaganj. The ganja was sent to Forensic Science Laboratory on 06.05.2010 and was received on 08.05.2010. He has stated that 31 packets charas, each containing one kilogram, three packets charas, each containing half kilogram and four packets charas, each containing seventy five packets, were seized weighing five kilogram. Seventy five packets charas recovered weighing 111 kilogram, six packets ganja, each containing five kilogram were recovered. In two packets, each containing 21 packets, having three kilogram weighing 126 kilogram and 15 packets ganja in jute gunny bags, each containing 3 kilogram, 14 packets charas, each containing 1 kilogram, 16 pouches charas, each containing 1 kilogram and 24 packets charas, each containing 1 kilogram were seized. The seized articles were handed over to Suresh Paswan. He, in paragraph 18 of his cross examination, has stated that there is no mention in the entire case diary about the sealing of the seized articles. He has also stated that he has not mentioned in the case diary that how he took the sample and what amount of the sample was taken from seized articles. He has, further, stated in paragraph 18 of his cross examination that there is no mention in the case diary about the sealing of the seized articles.
15. P.W. 5 is the Subdivisional Police Officer, who has stated that at about 08.00 he got information that 5-6 persons are Patna High Court CR. APP (SJ) No.79 of 2013 dt.06-08-2014 8 staying in the Railway Colony along with ganja and charas and on this information he reached at the spot, surrounded and has stated that on raid six persons were apprehended and articles were seized. However, in his cross examination in paragraph 13, he has stated that that the seizure list has not been prepared in his presence as at the time of preparation of seizure list he went to his residence.
16. Hence, from the evidence of the witnesses, it is apparent that though the seizure was initiated at the instance of Subdivisional Police Officer. As per the first information report, the raid was conducted at the instance of the Subdivisional Police Officer, P.W. 5, on initiation of P.W. 5 the informant proceeded and the raid was conducted before him, but, P.W. 5 in his evidence has not stated that before proceeding for raid he has complied the provision of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Section 42(1) of the Act provides that the authorized officer before proceeding for search and seizure on information or his knowledge shall record in writing his reason to belief and if the search to be made in between sunset and sunrise, then, as per proviso to Section 42(1) of the Act shall record the ground of his belief and as per under Section 42(2) of the Act he shall within seventy four hours send the information in writing and ground of his belief recorded under proviso to his immediate superior. It is well settled that the compliance of sub sections (1) or (2) of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, is mandatory and non- compliance is fatal to the prosecution. However, Section 41(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985, provides that when a gazetted officer empowered by Central Government or State of Bihar himself make an arrest or conduct a search and sub section (3) of Section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985, vests with all the power by officer acting under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
17. However, having regard to the fact that it is not in dispute that the raid was conducted in presence or at the instance of Patna High Court CR. APP (SJ) No.79 of 2013 dt.06-08-2014 9 the Subdivisional Police Officer, a gazetted officer, and search, seizure and arrest of the accused persons were made, he was acting under Section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hence, compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was not required, hence, I am of the view that Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, is not applicable under the facts and circumstances of the case. The prosecution case is not suffering from infirmity on ground of non-compliance of the provision of Section 42 of the Act and this view supported by decision reported in A.I.R. 2003 S.C., 4311 (M. Prabhulal Vrs. Assistant Director, Directorate of Revenue Intelligence).
18. The next question for consideration that from the evidence, discussed above, it is apparent that accused persons were apprehended from a room and articles seized, the seizure list prepared, but, the material witnesses, who are P.Ws. 5, 6, 7 and 8, have not stated that they have sealed the articles on the spot nor they have stated they have ever sealed the articles. The first investigating officer, who was in the charge of investigation till 07.03.2010, has not whispered anything about sealing the material sent to Railway Police Station. The informant, P.W. 6, has though stated that he sent the request to the Police Station, but, he also has not stated that he sealed and seized the articles. However, in cross examination, he categorically stated that he did not sealed article at the place of occurrence nor taken the signature of the accused persons on the packets nor even the gunny bags were sealed, which was sent, neither the Officer-in-Charge of the police station, where the seized articles were sent, has come forward to say that he received the seized articles were kept in malkhana of the Police Station nor the malkhana register proved to show about the fact that seized articles were kept at Police Station. Though P.W. 7 has come forward to say that he sent the sample for test, but, he has not stated in his evidence that from where he took the sample. He has not specifically stated that how he took Patna High Court CR. APP (SJ) No.79 of 2013 dt.06-08-2014 10 the sample and from which packet, from one packet or from each of the packets. Neither the seized articles produced before the Court nor the certificate of the Magistrate, as per Section 52A of the Act or the malkhana register proved.
19. The seized articles were sent to Rail Police Station, Narkatiyaganj. The informant, P.W. 6, stated that packets of seized articles opened and the articles were not sealed the sample not taken at the place of occurrence nor sealed at the place of occurrence. P.W. 8, the first investigating officer, has also not stated about the sealing of the seized articles. P.W. 7 is the second investigating officer, who has stated that he took the charge of investigation on 07.03.2010. The occurrence is of 23.02.2010 and not stated anything about sealing or opening of any seal though he stated that he sent the sample to Forensic Science Laboratory, but, has not stated whether he took sample from each packet nor has stated that the specimen of ganja sent for examination was even sealed the sample for sending the same nor it has been stated that any certificate of Magistrate taken about taking sample from seized article. Hence, it is apparent that neither the malkhana registers nor the seized article were placed before the Court nor the photographs have been produced.
20. Sections 52 and 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985, provide mode of the disposal of the articles, seized. In Sections 52 and 52(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985, as well as Sections 55 and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985, have been complied. Section 52(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985, provides the manner that when the seized articles be sent to a Police Station, the Officer-in-Charge of the Police Station shall prepare an inventory of the narcotic drugs and psychotropic substances containing details to their description, quality, quantity, modes of taking marks, number of such other articles certifying the correctness of the inventory, so prepared by a Magistrate in presence of Magistrate with photographs of such drugs Patna High Court CR. APP (SJ) No.79 of 2013 dt.06-08-2014 11 be taken. Section 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985, provides that Officer-in-Charge of Police Station shall take charge and keep it in safe custody and affix his seal to such articles or to take sample and all samples so taken shall also be sealed with a seal of the Officer-in-Charge of the Police Station and Section 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985, provides that the person making an arrest or seizure within 48 hours of such arrest and seizure shall make a full report of the particulars of such arrest or seizure to his immediate officer, superior.
21. It is true that Sections 52, 55 and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985, are not mandatory. However, it has been well settled in decision reported in A.I.R. 2001 S.C., 1002 (Gurubax Singh Vrs. State of Haryana) that the investigating officer can not totally ignore the provisions of Sections 52A, 55 and 57 of the Act as such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article.
22. In the present case there is no evidence that the articles, seized, were ever sealed at the spot or even at the Police Station though it has been stated that it was sent to the Police Station, but, there is no mention that the same was sealed or kept in malkhana of Police Station and even registered in register of malkhana. There is no mention that they were kept in malkhana. However, no Police Officer come to say that it was kept in malkhana of the Police Station nor the register of malkhana was produced nor the witnesses stated that whether the samples were sent from these seized articles or whether the sample was taken from each of the packets of the seized articles nor it has come in evidence that sample taken was ever sealed before sending it to the Forensic Science Laboratory. The Forensic Science Laboratory report also does not disclose that the sample received was sealed with a seal of Officer-in-Charge nor the sample taken before Magistrate as provided under Section 52 A of the Act. Hence, the authenticity of the report, Exhibit 3, that the articles seized Patna High Court CR. APP (SJ) No.79 of 2013 dt.06-08-2014 12 were ganja or charas has not been established beyond reasonable doubt and the appellants are entitled to benefit of doubt.
23. It is pertinent to mention that the safe guard provided for the appellants as the Act, itself, said to be a draconian act and the safe guard provided has not been observed, hence, the conviction and sentence, recorded by the trial Court, is not sustainable and is hereby set aside and the appeals are allowed and the appellants are ordered to be acquitted.
(Gopal Prasad, J) The Patna High Court, The 6th day of August, 2014, N.A.F.R., SA/-
U U T T