Patna High Court
Suresh Singh vs State Of Bihar on 29 November, 2011
Author: Gopal Prasad
Bench: Gopal Prasad
Criminal Appeal (SJ) No.183 of 1998
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Against the judgment, dated 02.05.1998, passed by Shri Binoy Kumar
Sinha, Additional Sessions Judge, II, Bhojpur, in N.D. Case No. 35 of
1991
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Bhuvneshwar Singh @ Bhanu Singh, son of Keshow Prasad Singh,
resident of village Masharah, P.S. Udwantnagar, district Bojpur
.. Appellant
Versus
The State of Bihar .. Respondent
With
Criminal Appeal (SJ) No. 273 of 1998
Baijnath Singh, son of late Ram Ekbal Singh, resident of village
Masarh, P.S. Udwantnagar, district Bhojpur
.. Appellant
Versus
The State of Bihar .. Respondent
With
Criminal Appeal (SJ) No. 249 of 1998
Yadu Singh @ Yaduvansh Singh, Yadu Singh @ Yaduvansh Singh,
son of late Ram Sakal Singh, resident of village Masarh, P.S.
Udwantnagar, district Bhojpur .. Appellant
Versus
The State of Bihar .. Respondent
With
Criminal Appeal (SJ) No. 242 of 1998
Suresh Singh, son of late Sheo Tawakal Singh, resident of village
Masarh, P.S. Udwantnagar, district Bhojpur
.. Appellant
Versus
The State of Bihar .. Respondent
2
With
Criminal Appeal (SJ) No. 241 of 1998
Arjun Kumar Singh @ Arjun Singh, son of Bibhuti Prasad Singh,
resident of village Masarh, P.S. Udwantnagar, district Bhojpur
.. Appellant
Versus
The State of Bihar .. Respondent
With
Criminal Appeal (SJ) No. 239 of 1998
Ramnath Singh, son of Kuldeep Singh, resident of village Masarh,
P.S. Udwantnagar, district Bhojpur .. Appellant
Versus
The State of Bihar .. Respondent
With
Criminal Appeal (SJ) No. 226 of 1998
Anjay Kr. Singh @ Datul Singh, son of Shri Mrithunjai Singh,
resident of village Masarh, P.S. Udwantnagar, district Bhojpur
.. Appellant
Versus
The State of Bihar .. Respondent
With
Criminal Appeal (SJ) No. 188 of 1998
Dhanjay Singh @ Dhananjay Singh, son of Sita Ram Singh, resident
of village Masarh, P.S. Udwantnagar, district Bhojpur at Arra
.. Appellant
Versus
The State of Bihar .. Respondent
With
Criminal Appeal (SJ) No. 264 of 1998
Birendar Singh @ Birendra Kumar Singh, son of Raghubir Singh,
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resident of village Masarh, P.S. Udwantnagar, district Bhojpur
.. Appellant
Versus
The State of Bihar .. Respondent
With
Criminal Appeal (SJ) No. 177 of 1998
Vinay Kumar Singh, son of late Ramashish Singh, resident of village
Masarh, P.S. Udwantnagar, district Bhojpur at Arra
.. Appellant
Versus
The State of Bihar .. Respondent
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Appearance :
(in Cr. Appeals (S.J.) No. 183 and 273 of 1998)
For the appellant .. Mr. Kanhaiya Prasad Singh,
Sr. Adv. with
M/S Sachidanand Singh &
Smt. Jyotina Shankar, Advs.
(in Cr. Appeal (S.J.) No. 226 of 1998)
For the appellant .. Mr. G.P. Bimal, Adv.
(in Cr. Appeal (S.J.) No. 239 of 1998)
For the appellant .. Mr. T.N. Singh, Adv.
(in Cr. Appeals (S.J.) No.188,249,242,241, 188,264 and177 of 1998 )
For the Appellant .. M/S N.A. Shamsi, S. Qaisar
Hasan & E. Ehteshamuddin,
(in all the cases)
For the respondent .. Mr. Parmeshwar Mehta,
APP
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PRESENT
THE HON'BLE MR. JUSTICE GOPAL PRASAD
Gopal Prasad, J.All these ten appeals have been heard together and are 4 being disposed off by this common judgment as they arise out of the same impugned judgment, dated 12.05.1998, passed by Additional Sessions Judge, II, Arrah in N.D. P.S. Case No. 35 of 1991, by which the appellants have been convicted under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act and sentenced appellants, Bhuneshwar Singh @ Bhanu Singh (Cr. Appeal (S.J.) No. 183 of 1998) to undergo rigorous imprisonment for four years for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act with a fine of Rs.20,000/- and in default to pay the same, further to undergo rigorous imprisonment for six months, Baijnath Singh (Cr. Appeal (S.J.) No. 273 of 1998) sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.45,000/- and in default, further, to undergo rigorous imprisonment for three years, Yadu Singh @ Yaduvansh Singh (Cr. Appeal (S.J.) No. 249 of 1998) sentenced to undergo rigorous imprisonment for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act for five years with a five of Rs.40,000/- and in default of payment of fine, further, to undergo rigorous imprisonment for eighteen months, Suresh Singh (Cr. Appeal (S.J.) No. 242 of 1998) sentenced to undergo rigorous imprisonment for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act for four and half years with a fine of Rs.35,000/- and in default of payment of fine, further, to undergo rigorous imprisonment for one month, Arjun Kumar Singh @ Arjun Singh (Cr. Appeal (S.J.) No. 241 of 1998) sentenced to undergo 5 rigorous imprisonment for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act for four years with a fine of Rs.25,000/- and in default of payment of fine, further, to undergo rigorous imprisonment for eight months, Ramnath Singh (Cr. Appeal (S.J.) No. 239 of 1998) sentenced to undergo rigorous imprisonment for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act for four years and two years respectively with a fine of Rs.30,000/-, Anjay Kumar Singh @ Datul Singh (Cr. Appeal (S.J.) No. 226 of 1998 sentenced to undergo rigorous imprisonment for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act for five years with a fine of Rs.40,000/- and in default of payment of fine, further, to undergo rigorous imprisonment for eighteen months, Dhanjay Singh @ Dhananjay Singh (Cr. Appeal (S.J.) No. 188 of 1998) sentenced to undergo rigorous imprisonment for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act for four years with a fine of Rs.25,000/- and in default of payment of fine, further, to undergo rigorous imprisonment for eight months, Birendar Singh @ Birendar Kumar Singh (Cr. Appeal (S.J.) No. 264 of 1998) sentenced to undergo rigorous imprisonment for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act for three and half years with a fine of Rs.5,000/- and in default of payment of fine, further to undergo rigorous imprisonment for six months and Vinay Kumar Singh (Cr. 6 Appeal (S.J.) No. 177 of 1998) sentenced to undergo rigorous imprisonment for four years for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act with a fine of Rs.25,000/- and in default of payment of fine, further, to undergo rigorous imprisonment for eight months.
2. The prosecution case, as alleged, is that the informant, Nageshwar Prasad Gupta, In-Charge, Gajrajganj Out Post on 12.05.1991 at about 07.45 a.m. got a secret information that in village Masharah, Baijnath Singh, Yaduvansh Singh, Ramnath Singh, Bhuvneshwar @ Bhanu Singh, Anjay Singh @ Dantul Singh, Suresh Singh, Arjun Singh, Vinay Kumar Singh and Virendra Singh were involved in business of ganja. On the said information, the Officer-in- Charge, along with, Assistant Sub Inspector of Police, Bhola Naim and armed force of B.M.P. reached Arrah and informed the Deputy Superintendent of Police, Ajit Kumar Sinha, who constituted a raiding party and under the guidance of Deputy Superintendent of Police raided and searched the houses of the appellants one-by-one. During the search and seizure from the house of Baijnath, ganja in 7gunny bags weighing about 510 kgs. wrapped in plastics, in 12 begs kept in house of Yaduwansh Singh weighing 400 kgs, in 4 bags from the house of Ramnath Singh weighing 135 kgs., in a carton weighing 30 kgs. from the house of Bhuvneshwar Singh @ Bhuru Singh, wrapped in green coloured plastic weighing 20 and 30 kgs. from the joint house of Dhnanjy and Ajay Singh, sons of Sitaram Singh, in 9 bags, weighing 380 kgs., from the house of Anjay @ Dantul, in 5 black coloured plastic sheets, weighing 200 kgs., from the house of Suresh 7 Singh, in a bag covered in black plastic sheet, weighing 50 kgs., from the house of Arjun Singh, in bags, weighing 40, 10 and 50 kgs. respectively, from the house of Vinay Kumar Singh and in green coloured polythine, weighing 5 kgs., from the house of Virendra Singh were recovered and on demand no papers were produced nor any satisfactory explanation was given and accused, Anjay Singh, Vinay Kumar Singh, Dhananjay Singh, Ajay Singh, Arjun Singh, Birendra Singh and Bhuneshwar Singh were arrested.
3. On the fardbeyan the first information report lodged and investigation proceeded. After completion of the investigation the charge sheet submitted, cognizance taken and the trial proceeded.
4. During investigation, the ganja send for examination to excise expert was examined and the report received. The police, after investigation, submitted charge sheet, cognizance taken and consequently the trial proceeded after framing of the charges for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act against all the appellants.
5. Fourteen witnesses were examined during trial, who are P.W. 1, Indrashan Chaudhary, P.W. 2, Alhilendra Kumar Singh, P.W. 3, Arun Kumar Dwivedi, P.W. 4 Rabindra Nath Singh, P.W. 5, Ramesh Dubey, P.W. 6, Ajit Kumar Sinha, P.W. 7, Surendra Singh, P.W. 8, Sudhir Singh, P.W. 9, Sunil Kumar Mishra, P.W. 10, Amrendra Narain Singh, P.W. 11, Nageshwar Prasad Gupta, P.W. 12, Shiv Bhushan Prasad, P.W. 13, Baijnath Singh, and P.W. 14, Mukund Singh.
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6. The documentary evidence proved are Exhibits 1 to 1/9 endorsement and signature of witnesses on the seizure list, Exhibits 2 to 2/9, seizure list, Exhibit 3 written report, Exhibit 4, formal first information report, Exhibit 5 is the report of the expert, Exhibit 6.
7. The trial Court, taking into consideration the evidence of the witnesses held that there was recovery of about 18 quintal and 10 kgs. of ganja and the seizure list prepared. The seized ganja was kept at Udwantnagar Police Station under P.W. 14, who had kept it in safe custody in room with key with him The sample of the ganja was taken from each and every packet and the report of expert, P.W. 12, was obtained who reported that it was ganja.
8. The investigating officer after his evidence in examination-in-chief on 03.07.1993 and 05.07.1993 did not turn up to depose, but, there is cogent and reasonable explanation of P.W. 14 for his non-appearance and, hence, the trial Court convicted the appellants and sentenced, accordingly, as mentioned above.
9. The learned counsel for the appellants, however, contends that the ganja alleged to have been seized from the houses of the appellants, but, the ganja after the seizure have not been dealt properly in accordance with law under Sections 52, 52A and 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985. In stead of sending the samples of the seized articles to the Chemical Analyst it has been sent to the Excise Inspector, P.W. 12, for formal report, without any chemical test, but, on mere smelling of the same. The procedure has not been adopted properly as provided under Sections 9 52, 52A and 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and, hence, the order of conviction and sentence, recorded by the lower Court, is not sustainable in law.
10. The learned counsel for the State, however, contends that the ganja was seized and the witnesses have supported the prosecution, hence, there is sufficient compliance of the procedure to maintain the conviction and, hence, on the respective submissions of the parties the question for consideration whether the prosecution has been able to prove the charges beyond reasonable doubts in accordance with law.
11. Out of fourteen witnesses, P.W. 11 is the informant- cum-investigating officer, who has supported the prosecution case that on secret information he proceeded to inform the Deputy Superintendent of Police, P.W. 6, under whose guidance a raiding party was constituted and raid conducted. The ganjas were seized from the houses of the appellants. On recovery of the ganja seizure list prepared and has proved the seizure list in his pen and signature, which has been marked as Exhibits 2 to 2/9. He got ganja examined by an expert, Excise Inspector, and got report of the same. He has proved the report in the writing and signature of Excise Inspector, Shiv Bhushan Prasad, P.W. 12. The report of the Excise Inspector has been marked as Exhibit 5. The requisition of the investigating officer for examination has been marked as Exhibit 6.
12. The investigating officer after his examination-in- chief on 03.07.1993 and 05.07.1993 did not turn up for cross examination hough steps taken for cross examination. P.W. 8 is 10 independent seizure list witness, who had proved his signature on the seizure list, Exhibit 2 series and his signature on seizure list marked as Exhibits 1 to 1/9. However, he has stated that nothing recovered from the houses of the accused persons before him. This witness has been declared hostile. P.W. 9 is another seizure list witness who has though proved his signature on the seizure list which has been marked as Exhibits 1/10 to 1/19 and has been declared hostile has not supported the seizure in his presence and claimed that his signature was taken on plain paper. P.W. 1 has supported the prosecution case regarding the search and seizure and preparation of the seizure list by P.W. 11, however, stated that he can not say any specific mark was put on the seized articles or not. In cross examination though he has stated that the seized article was brought by him to Arrah and, again, from Arrah it was sent to Udwantnagar Malkhana though he claimed that the seized articles were weighed and was present during all steps of the making the seizure. P.W. 2 is only a witness to the seizure in the house of Baijnath Singh and he remained there though have stated that the seized ganja was sent for chemical examination. P.W. 3 is tender. P.W. 4 has stated that he is unable to say about the weight of seized ganja and do not claim to identify the accused persons. P.W. 5 has stated that he filed supplementary charge sheet in this case. P.W. 6 has come to depose that the search was made from the house of the appellants and the ganja was recovered and claimed to identify the accused in dock and the accused, who were not present and represented by their Advocates. However, in cross examination he has stated that the ganja was kept in gunny bags and was sealed, 11 however, stated that he has not signed on the said ganja though claimed that the sample of the seized ganja was sent for chemical examination. P.W. 7 has stated that the raiding party reached Masharah village with two independent witnesses, P.Ws. 8 and 9, and the ganja was recovered. However, he did not claim to have identified the accused persons and in cross examination has stated that he was amongst the persons who had surrounded the village at the time of recovery and has stated that the accused arrested were brought to Gajrajganj Out Post and the ganja was taken to Muffasil Police Station. P.Ws. 8 and 9 the independent witnesses turned hostile though proved their signatures on seizure list, but, stated that the article not seized before them. P.W. 10 is tender. P.W. 12 is the Excise Inspector, who has stated that on examination he found that a rticle for examination was ganja and proved his report, marked as Exhibit 5. This report, Exhibit 5, mentioned that he identified by smelling. However, in cross examination, he has stated that he did not examine ganja or any specific mixture. P.W. 13 is tender. P.W. 14 is Mukund Kumar Singh. He in his evidence in examination-in-chief supported the prosecution case that he was member of the raiding party and the village was raided and the ganja was recovered from the houses of the appellants and Nageshear Prasad Gupta, P.W. 11, seized the ganja in presence of the witnesses and prepared the seizure list and, thereafter, he prepared the report and the first information report was lodged in the Police Station. He has proved the formal first information report at Udwantnagar Police Station prepared by Assistant Sub Inspector of Police, which has been marked as Exhibit 4 12 and identified Ramnath Singh and Yaddu Singh present in dock and claimed to identify the other accused persons who were present at the time of occurrence. However, in his cross examination he stated that he did not search any house nor ganja was recovered in his presence. A direction was issued to produce the seized ganja in Court. By order, dated 02.01.1997, it was ordered on the request of the Assistant Public Prosecutor to send a summon to the Assistant Sub Inspector of Police, Mukund Singh to be present with the material Exhibits as well as to depose and on 18.01.1997 this witness was, again, examined and he in his evidence has stated that 18 quintals of ganja was seized and said seized ganja was kept in Udwantnagar Police Station by the order of the then Superintendent of Police. He has stated that 12 to 14 kgs. ganja was kept as a sample for Exhibit and has stated that this is the ganja sample which is being presented in Court and has been marked as material Exhibit 1. He has stated that the rest of the seized ganja is sealed and lying in a room of Udwantnagar Police Station. However, he has stated that he is neither the informant nor the investigating officer of the case and has got only one copy of the seizure list of the seized ganja. After the seizure the investigating officer did not keep the seized ganja in his possession, but was kept in the possession of P.W. 14. He has, further, stated that the investigating officer did not demand the seized ganja. He did not inform the Court that the seized ganja in his custody and has stated that the seized ganja is kept in a room in Udwantnagar Police Station and the key of the said lock is in his custody and there are two keys of that room in which ganja was kept. He has, further, stated that he has opened the lock for taking the 13 sample as material Exhibit and there is no witness of unsealing or sealing of the lock. He has, further stated that he was transferred in October, 1991, from Udwantnagar Police Station and, thereafter, he went to Udwantnagar Police Station to see that whether the lock is sealed or not. However, he has stated that the seized ganja was kept separately in bundles as per the seizure. However, further, stated that the rats has got eaten the bundles of ganja. He has, further, stated that in process of sending the sample to Forensic Science Laboratory the samples were taken from each bundles, but, he could not say that how much amount of the articles were taken at that time the investigating officer was not there.
13. However, there is evidence that the ganjas were seized from the houses of the appellants, same was sent for examination before Excise Inspector and he reported by smelling that the article sent for examination of ganja and P.W. 14, the Officer-in- Charge of Udwantnagar Police Station stated tht he kept the ganja in a room under his lock and key. Hence question is whether it is sufficient compliance of the Narcotic Drugs and Psychotropic Substances Act, 1985, to record conviction.
14. It is relevant to quote the procedure dealing with the seized ganja as ingredient, Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985, is reproduced below :
52A : Disposal of narcotic drugs and psychotropic substances --- (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any 14 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 the 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 prepared an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of pacing, marks, numbers or such other identifying particulars of the narcotic drugs of psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to 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 purpose 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 are 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 Magistrate shall, as soon as may be, allow 15 the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1074), 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.
15. Hence, Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985, mandates that as soon as the article seized and delivered into the custody of Officer-in-Charge of the Police Station or to the Officer empowered under Section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985, he is required to make an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, mode of packing method, number or such identifying particulars of narcotic drugs packing in which they are packed, country of origin and other particulars. He is required to make an application to any Magistrate for certifying the correctness of inventory and taking the photograph of such drugs and certifying photograph and to draw respective sample of drugs in presence of Magistrate and Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985, provides a rule of evidence that the inventory prepared and photograph are proving evidence in respect of evidence. Hence, Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985, provides the procedure to deal with seized 16 article as well as rule of evidence treating it as primary evidence. Hence, non-compliance has completely deny the primary evidence and create doubt that the seized articles were the article which have actually been seized and has not been substituted by other articles.
16. However, the requirements of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985, and has not been complied with. However, it is, further, relevant to quote Section 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which is as follows :
55 : Police to take charge of articles seized and delivered --- An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local are of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
17. Section 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985, however, provides that the article seized is suspected to be narcotics substance or drug is seized, it has to be put in charge of Officer-in-Charge of Police Station and the Officer-in-
Charge of the Police Station shall allow the officer who may accompany such article or who may be deputed to fix his seal to such 17 article or allow the sampling of seized article and the seized article and sample be sealed both by Officer-in-Charge of the Police Station and the officer seized or brought the substance to the Police Station. The purpose of putting seal of the Officer-in-Charge of Police Station and officer seizing is very sacrosanct. It eradicates any chance of adulteration and replacement of seized article.
18. The sample of seized article prepared in accordance with the provision under Act is immediately required to send for chemical examination for Forensic Science Laboratory.
19. It is relevant to mention that the punishment under Narcotic Drugs and Psychotropic Substances Act, 1985, is severe and is draconian law and, hence, the burden on prosecution to scrupulously observe the procedure and any deviation in the procedure for investigation more particularly about search, seizure and sampling of the article may result in benefit of doubt and resulting in acquittal of accused.
20. However, the informant-cum-investigating officer, P.W. 12, in his evidence he has not stated that he took the seized article at Police Station nor has he stated that the article seized and kept at Police Station was unsealed by him nor has stated that the sample taken out and sealed with his signature as well as seal of the Officer-in-Charge of the Police Station was given on sample and article seized. P.W. 14, Officer-in-Charge, though has come to say that article seized was kept at Udwantnagar Police Station in a room locked under key. However, he did not say that after the occurrence he get any inventory prepared and compliance of Section 52A of the 18 Narcotic Drugs and Psychotropic Substances Act, 1985, to produce the prima facie case and, further, neither kept the article in Malkhana register.
21. However, taking into consideration the facts and circumstances of the case the seized article was brought before the Udwantnagar Police Station. But the Officer-in-Charge of Police Station neither prepared an inventory about quality, mode of packing, identifying particulars as enshrined in Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985, nor photograph taken nor made any application before the Magistrate certifying the correctness or inventory nor sealed the article by seal of the officer who brought the article and seal of the Officer-in-Charge nor kept the article in Malkhana nor proved any register to show the article seized find mention to have been kept in Malkhana of Police Station, hence, there is complete violation of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985.
23. Further, there is nothing to show that sampling of seized article was in presence of the investigating officer or officer authorized with seal of both of them and, hence, there is violation of Section 55 of the Evidence Act.
24. The trial Court, however, misdirected itself in fact in holding that Exhibit 1 was produced in the Court and the sample had been sent to the expert for examination. It is pertinent to mention that the sample was sent on 03.07.1991 and the report of the Excise Inspector received on 06.07.1991 whereas the material Exhibit produced before the Court by P.W. 14 on 18.01.1997 and there is no 19 report of any expert if the sample of the material Exhibit 1 was sent and, hence, it is apparent that there is violation of Sections 52A and 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985. However, there is need to protect the society from the criminals and the social independence and safety will suffer if the person who commits the crime is let off because evidence against him is to be treated as if it does not exist. However, at the same time the accused is entitled to a fair trial as the conviction from unfair trial is contradictory to the Court of justice and there will be more advantage that the criminals may escape justice, but, the investigating agency must follow the procedure as envisaged by the law strictly and scrupulously and failure to do so must be viewed by higher officer seriously. If the direction of the judicial proceeding may come under cloud and it may undermine the respect of law and may have the effect of inconsolable compromising the administration of justice.
25. However, it is true that an offence has gone unpunished, but, the fair trial for the accused also can not be ruled out. However, having regard to the facts and circumstances though there is evidence regarding search and seizure, but, the investigating agency having non-applying with the safeguards provided under Sections 52A and 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has not been followed. However, keeping the seized material in Police Station without having sealed and having no specific evidence regarding the sample and sending it to the Chemical Analyst and even report received of Excise Inspector of the Department of Excise does not inspire confidence as it has not specifically established about the 20 identity of the chemical seized from the possession of the appellants and the learned lower Court did not take into consideration these safeguards.
26 Hence, taking into consideration the entire evidence I do not find and hold that the prosecution has not been able to prove the charges, levelled against the appellants for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act, beyond reasonable doubts.
27. The order of conviction and sentence, recorded against the appellants, is hereby set aside and the appeals are allowed. If the appellants deposited the fine, they may persuade for the refund in accordance with law.
( Gopal Prasad, J. ) The Patna High Court, The 29th day of November, 2011, A.F.R., S.A.