Patna High Court
Yatendra Chauhan vs The State Of Bihar on 4 July, 2023
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.705 of 2018
Arising Out of PS. Case No.-344 Year-2016 Thana- BARACHATTI District- Gaya
======================================================
Sunil Kumar Son of Sri Babulal, resident of Muhalla G- 10/146, Sangam
Bihar New Delhi, P.S. Sangam, Bihar, Dist.- New Delhi.
... ... Appellant/s
Versus
The State Of Bihar Police Inspector Raj Kumar Tiwari
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 700 of 2018
Arising Out of PS. Case No.-344 Year-2016 Thana- BARACHATTI District- Gaya
======================================================
Amrita Singh daughter of Sri Pahal Singh resident of Mohalla - Madangir
New Delhi Flat No. 21/616, P.S. - Madangir, District - New Delhi.
... ... Appellant/s
Versus
The State Of Bihar (Police Inspector Raj Kumar Tiwari )
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 710 of 2018
Arising Out of PS. Case No.-344 Year-2016 Thana- BARACHATTI District- Gaya
======================================================
Rajendra Kumar Arya Son of Late Shivlal, resident of Muhalla D 241/IA
Sangam Bihar New Delhi, P.S. Sangam Bihar, District- New Delhi.
... ... Appellant/s
Versus
The State Of Bihar Through Police Inspector Raj Kumar Tiwari
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 716 of 2018
Arising Out of PS. Case No.-344 Year-2016 Thana- BARACHATTI District- Gaya
======================================================
Yatendra Chauhan son of Syam Singh, resident of Muhalla Sangam Bihar
Gali No. 12 House No. 233 New Delhi, P.S. Sangam, Bihar, District- New
Delhi.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 724 of 2018
Arising Out of PS. Case No.-344 Year-2016 Thana- BARACHATTI District- Gaya
======================================================
Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023
2/16
Md. Sabbir Khan S/o Late Matin Khan, R/o Vill.- Chitkhori, P.S.- Muffasil,
District- Bhojpur.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 910 of 2018
Arising Out of PS. Case No.-344 Year-2016 Thana- BARACHATTI District- Gaya
======================================================
Upendra Yadav @ Upendra Kumar Son of Jugal Singh @ Jugul Singh,
Resident of Village- Damaruaon, P.S.- Agion Bazar, District- Bhojpur.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 705 of 2018)
For the Appellant/s : Mr. Ashok Kumar Mishra, Advocate
Ms. Pratibha Srivastava, Advocate
Mr. Harsha Shashwat, Advocate
Mr. Prabhat Kumar Singh, Advocate
Mr. Anirudh Kumar Singh, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 700 of 2018)
For the Appellant/s : Mr. Ashok Kumar Mishra, Advocate
Ms. Pratibha Srivastava, Advocate
Mr. Harsha Shashwat, Advocate
Mr. Prabhat Kumar Singh, Advocate
Mr. Anirudh Kumar Singh, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 710 of 2018)
For the Appellant/s : Mr. Ashok Kumar Mishra, Advocate
Ms. Pratibha Srivastava, Advocate
Mr. Harsha Shashwat, Advocate
Mr. Prabhat Kumar Singh, Advocate
Mr. Anirudh Kumar Singh, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 716 of 2018)
For the Appellant/s : Mr. Ashok Kumar Mishra, Advocate
Ms. Pratibha Srivastava, Advocate
Mr. Harsha Shashwat, Advocate
Mr. Prabhat Kumar Singh, Advocate
Mr. Anirudh Kumar Singh, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 724 of 2018)
For the Appellant/s : Mr. Ashok Kumar Mishra, Advocate
Ms. Pratibha Srivastava, Advocate
Mr. Harsha Shashwat, Advocate
Mr. Prabhat Kumar Singh, Advocate
Mr. Anirudh Kumar Singh, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023
3/16
(In CRIMINAL APPEAL (DB) No. 910 of 2018)
For the Appellant/s : Mr. Ashok Kumar Mishra, Advocate
Ms. Pratibha Srivastava, Advocate
Mr. Harsha Shashwat, Advocate
Mr. Prabhat Kumar Singh, Advocate
Mr. Anirudh Kumar Singh, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 04-07-2023
All these criminal appeals have been taken up
together and are being disposed of by this common
judgment.
2. Mr. Ashok Kumar Mishra, learned Advocate has
appeared on behalf of the appellants Sunil Kumar, Md.
Sabbir Khan and Upendra Kumar @ Upendra Yadav in Cr.
App(DB) Nos. 705, 724 and 910 of 2018 respectively.
3. Nobody has appeared on behalf of the
appellants Amrita Singh, Rajendra Kumar Arya and
Yatendra Chauhan in Criminal App (DB) Nos. 700, 710
and 716 of 2018 respectively. On our request, Mr. Mishra
has rendered assistance on behalf of these appellants also.
The State has been represented by Mr. Dilip Kumar Sinha,
learned APP.
Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023
4/16
4. All the appellants have been convicted under
Sections 8, 20(b)(ii)(c), 25 and 29 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 and have been
sentenced to undergo R.I. for 12 years, a fine of Rs. 1
lakh each for the offence under Section 20(b) (ii)(c) of the
N.D.P.S. Act; and in default of payment of fine, to further
suffer R.I. for one year. For the offence under Section 25
of the N.D.P.S. Act, the appellants have been sentenced
for 12 years, a fine of Rs. 1 lakh and in default of payment
of fine, to further suffer R.I. for one year. For the offence
under Section 29 of the N.D.P.S Act, the appellants have
been directed to suffer R.I. for three years vide judgment
of conviction and order of sentence dated 19.04.2018 and
23.04.2018respectively, passed by the learned Additional Sessions Judge-II, Gaya in connection with N.D.P.S. Case No. 01 of 2017, arising out of Barachatti P.S. Case No. 344 of 2016.
5. All the sentences have been directed to run concurrently.
Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023 5/16
6. The appellants were found to be sitting in two vehicles, which were intercepted by the police party, from where a total of 294 Kgs. of Ganja was recovered. Two of the persons managed to run away who have yet not been apprehended.
7. The FIR was lodged by Raj Kumar Tiwary (P.W. 9) who has alleged that in the night of 04.09.2016 at about 1:30 P.M., he received a secret information that a gang involved in transport and sale of narcotics is attempting to smuggle Ganja through Orrisa and Jharkhand. On such information, a police team was constituted and a picket was put up on the main road. Two vehicles were intercepted at an interval of about 45 minutes. From one of the vehicles, 99 Kgs. of Ganja was recovered whereas from the other, 195 Kgs. was recovered.
8. All the appellants were arrested. A seizure list was prepared and according to P.W. 9, samples were drawn at the place of seizure. Thereafter, the seized Ganja Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023 6/16 was brought to the police station and the FIR was registered vide Barachatti P.S. Case No. 344 of 2016 dated 04.09.2016 under Sections 8, 20(b)(ii)(c), 22(i), 25 and 29 of the N.D.P.S. Act, 1985.
9. The investigation was conducted by Prasidh Kumar Singh, the I.O. (P.W. 7) who found evidence against the appellants for putting them up on trial. He has submitted the chargesheet whereupon cognizance was taken and the case was tried.
10. The trial court, after having examined nine witnesses on behalf of the prosecution and none on behalf of the defence, convicted and sentenced the appellants as aforesaid.
11. Mr. Mishra has argued that the prosecution has not been able to prove the case beyond all reasonable doubts. He says so for the reason that all the mandatory provisions of the N.D.P.S. Act, 1985 have been blatantly flouted. The sampling process, as mandated under the standing orders of the department have not been followed. Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023 7/16 The provisions contained in Section 42, namely of recording the information so received by P.W. 9 and transmitting the same to a superior Police Officer within 72 hours has not been followed. In fact, such information has not been reduced into writing nor sent to the Superior Police Officer as ordained under Section 42 of the Act.
12. The evidence with respect to safe-keeping of the material exhibit viz. Ganja is absolutely lacking. But for one statement by P.W. 9 that he had brought the seized articles to the police station, there is no reference of its storage anywhere or its destruction under supervision of the authorities. There has been an unusual delay in seeking permission of the Trial Court for dispatching the samples to the CFSL. Even after such dispatch, the samples appear to have reached the CFSL after about two months without any explanation. The special messenger who took the samples to the CFSL from Barachatti Police Station has not been examined. This, in conjunction with the two seizure list witnesses viz. Mukesh Kumar (P.W. 5) Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023 8/16 and Satendra Kumar (P.W. 8) not supporting the prosecution story even a bit, makes the prosecution case highly doubtful and suspicious.
13. He has further submitted that notwithstanding the report of the CFSL confirming that the samples corresponded to Ganja containing Tetra Hydro Cannabinol as its chief intoxicating ingredient, it cannot be said with certainty that the samples were drawn from the seized narcotics from the two vehicles which was found to be occupied by the appellants. Thus, he submits that with such stringent provisions in the Act, such total breach of the same has vitiated the prosecution and therefore the judgment and order of conviction and sentence is unsustainable in the eyes of law.
14. As opposed to the aforenoted contentions, Mr. Dilip Kumar Sinha, learned APP has submitted that after recording the information received by P.W. 9, he had raised a picket at the border and with utmost alacrity had apprehended the two vehicles from where huge quantities Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023 9/16 of narcotics have been recovered. No explanation was offered by the appellants for the transportation of such huge quantity of Ganja.
15. That apart, Mr. Sinha has pointed out, a special arrangement was made by modifying the boot of the vehicles for stealthily storing huge quantity of Ganja which clearly establishes that all the appellants had consciously attempted to transport Ganja to far off destination and that they were no gratuitous passengers.
16. The very act of modifying the boot of the vehicles suggests that the appellants are part of a gang which operates in narcotics. He has further submitted that mere minor discrepancies in the prosecution case would not justify any interference with the judgment and order of conviction and sentence by the trial Court.
17. In view of the positive finding of the CFSL that the sample extracted from the seized commodity was Ganja, there is no way in which the appellants can plead their innocence.
Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023 10/16
18. We have found from the FIR as also the deposition of P.W. 9 that though the raid was conducted in the early hours of 04.09.2016, but the information received by P.W. 9 was never reduced in writing nor sent to the Superior Police Officer.
19. The proviso to Section 42 of the Act mandates that where any officer takes down any information in writing under Sub-Section (1) of Section 42 or records grounds for his belief under the proviso thereto, he shall within 72 hours send a copy thereof to his immediate official superior. Such precondition has been set forth in the statute only to prevent false implication of people.
20. In his deposition, P.W. 9 has not stated anything from which it could be inferred that the procedure for sampling was followed. A general statement has been made by P.W. 9 that samples were drawn at the place of search and seizure which were sealed.
Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023 11/16
21. We have noticed that several packets of narcotics were recovered from the two vehicles. In the absence of any categorical statement as to whether samples were drawn from each of the packets or the contents were mixed up and then samples were drawn, it is difficult to accept the statement of P.W. 9 to be the correct version of the occurrence.
22. This doubt of ours gets further confirmed by the fact that only one sample appears to have been sent to the CFSL.
23. Where were the narcotics kept in the meanwhile is not known.
24. The investigating Officer of the case (P.W. 7) has very conveniently told the Court that he had not inscribed in the diary as to where was the narcotics kept in the meanwhile.
25. As has been argued by Mr. Mishra, we do not find any material or evidence leading to an inference that the narcotics were kept in the Malkhana. No officer of Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023 12/16 Malkhana has been examined. In the same series of lapses by the investigating agency, Malkhana register certifying the storage of the narcotics in Malkhana has also not been produced. This obviously means that the records were completely deficient with respect to the storage of the narcotics in the meanwhile.
26. Except for the assessment of P.W. 9 that a total of 294 kgs of Ganja was recovered, there is no evidence of weighment as well. Precisely for this reason we find that the material exhibit is the remainder of the Ganja, was not produced or presented before the Court at the time of the trial. There is also no evidence of the same having been destroyed or else there would have been a permission to destroy and certificate of destruction of the concerned authority on the record which could have been a material exhibit dispensing with the requirement of production of the Ganja before the Court at the time of trial. The trial Court appears to have conveniently forgotten to ask about the material exhibit. Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023 13/16
27. The two seizure list witnesses have made a complete volte face and have deposed before the trial court that they were made to sign on blank papers. Somehow or the other, the aforenoted two witnesses have not been declared hostile.
28. We do reckon that the N.D.P.S. Act, 1985 provides for a reverse burden of proof upon the accused which is contrary to the normal rule of criminal jurisprudence of presumption of innocence until proved guilty; but that does not dispense with the requirement of the prosecution to first establish a prima facie case. Only whereafter, the burden will shift to the accused.
29. A mere registration of a case under the Act will not ipso facto shift the burden on to the accused from the very inception.
30. Non-compliance with the statutory requirements and procedures have to be strictly viewed. Any breach would render the prosecution case doubtful, which will enure only in favour of the accused. Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023 14/16
31. That no photography was done of the sampling process; no evidence has been offered of the storage of the material exhibit; and no person has offered to say that he brought the exhibits to the court, are the reasons for holding that the case against the appellants is weak.
32. In Jitendra vs. State of M.P. (2004) 10 SCC 562, the importance of production of the seized article as material exhibit has been highlighted. In the absence of any explanation for its non-production, there does not remain any connect with the forensic report and the substance that was seized from the possession of the appellants. Similar view has been expressed in Ashok vs. State of M.P. (2011) 5 SCC 123. As noted above, there is no evidence of even its destruction the certification of which would have serve the purpose.
33. Thus, for all practical purposes, except for the deposition of P.W. 9 (informant) and P.W. 7 (the I.O.) and to some extent the members of the raiding team viz. P.Ws. Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023 15/16 1 to 4, there is no material worth the name to connect the appellants with the offence.
34. With such deficient evidence against the appellants, we have no option but to set aside the judgment and order of conviction and sentence and we do so.
35. The judgment and order of conviction by the trial court is set aside and the appellants are acquitted of all charges.
36. We have been informed that appellants Amrita Singh in Cr. App (DB) No. 700 of 2018 and Yatendra Chauhan in Cr. App (DB) No. 716 of 2018 are on bail.
37. Their liabilities under the bail bonds are cancelled.
38. The appellants Sunil Kumar in Cr. App (DB) No. 705 of 2019, Rajendra Kumar Arya in Cr. App (DB) No. 710 of 2018, Md. Sabbir Khan in Cr. App (DB) No. 724 of 2018 and Upendra Yadav @ Upendra Kumar in Cr.
Patna High Court CR. APP (DB) No.705 of 2018 dt.04-07-2023 16/16 App (DB) No. 910 of 2018 are in custody. They are directed to be released forthwith from jail, if not required or detained in any other case.
39. A copy of the judgment be transmitted to the Superintendent of the concerned jail for compliance and record.
40. The records of this case also be sent back to the trial court.
41. All the appeals stand allowed.
(Ashutosh Kumar, J) (Shailendra Singh, J) krishna/-
AFR/NAFR AFR CAV DATE NA Uploading Date 07.07.2023 Transmission Date 07.07.2023