IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.350 of 2018 Arising Out of PS. Case No.-143 Year-2015 Thana- BIHIA District- Bhojpur [ENTITY] S/o Late Mukhram Singh, R/o Village- Makdumpur, P.S.- Bihiya, District- Bhojpur. Appellant/s Versus The [ENTITY] Respondent/s Appearance : For the Appellant/s : Mr.[ENTITY], Adv For the Respondent/s : Mr. [ENTITY], APP CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT 18-07-2019 Sole appellant, [ENTITY] having been found guilty for an offence punishable under Section 20-(b) (ii) of the [ACT], sentenced to undergo RI for five years as well as to pay fine appertaining to Rs. 25,000/-, in default thereof, to undergo SI for six months, vide judgment of conviction dated 05.12.2017
and order of sentence dated 11.12.2017 passed by 2nd Additional Sessions Judge-cum-Special Judge NDPS, Bhojpur, Ara relating to [CASE NUMBER] arising out of [CASE NUMBER].
2. [ENTITY] (PW 4) O/C of Bihia PS recorded his self statement that after constituting a raiding party, raid was conducted at the place of an accused of Gandhi Maidan [CASE NUMBER] at village Makhdumpur and during course thereof, it has been alleged that both the Patna High Court [CASE NUMBER] dt.18-07-2019 accused, namely, [ENTITY] as well as [ENTITY] managed to escape. House of both the accused were searched and during course thereof, nothing has been recovered from the house of [ENTITY] while from the house of [ENTITY], five kilogram of [ENTITY] has been recovered. Because of the fact that none of the villagers became ready to be a seizure list witness, on account thereof, two Chowkidars who were members of the raiding party, namely, [ENTITY] and [ENTITY] stood as seizure list witness. A copy of the seizure list was tendered before the family members who declined to accept the same.
3. After registration of [CASE NUMBER], investigation commenced followed with submission of charge-sheet whereupon, the trial commenced and concluded in a manner, subject matter of instant appeal.
4. The defence case as is evident from the mode of cross-examination as well as statement recorded under [SECTION] [ACT] is that of complete denial. However, neither oral nor documentary evidence has been adduced in defence.
5. Altogether five PWs have been examined on behalf of prosecution in support of its case who are PW-1, [ENTITY], PW-2, [ENTITY], PW-3, [ENTITY], PW-4, Patna High Court [CASE NUMBER] dt.18-07-2019 [ENTITY], PW-5, [ENTITY], Part I.O. Side by side, has also exhibited Ext-1, Signature of PW-2 over seizure list, Ext-2, Seizure List, Ext-3, Self Statement, Ext- 4, Charge-sheet, Ext-5, FSL report, Ext-6, report of Chemical Laboratory, Custom House, Kolkata. As stated above nothing has been adduced on behalf of defence.
6. Heard learned counsel for the appellant as well as learned APP, also gone through the record.
7. From the record, it is evident that PW-3, [ENTITY] had disowned his presence over the seizure list. Though, there happens to be disclosure at the end of the informant in the self statement that a copy of seizure list was tendered to the female folk who declined to accept a copy thereof. But, no such statement is found during trial over any endorsement to this effect is found over seizure list, Ext-2. Furthermore, it is also evident from the evidence of all the witnesses, more particularly, that of PWs-4 and 5 that they have not spoken a word with regard to preparation of samples. They have not spoken a word whether seized articles were sealed at the spot or not. PW-4, informant had not disclosed that after entrusting investigation, he had handed over seized articles in a sealed condition to PW-5 nor he had spoken a word whether it Patna High Court [CASE NUMBER] dt.18-07-2019 was deposited in the Maalkhana. In likewise manner, PW-5 had not stated during his examination in chief concerning the same but during cross-examination at para-11, he had stated that relevant documents along with seized articles were handed over to him at the time of entrustment of the investigation but, that conduct became suspicious in the background of the disclosure having in para-12 that he had not mentioned the same in the case diary. At para-15, he had stated that he had seen the seized article through his naked eye which he found sealed but again admitted that there happens to be no disclosure in the case diary. Apart from this, as perceived, none of the PWs has claimed identification of appellant in dock and on account thereof, the major substantive evidence is found lacking.
8. Apart from this, it is evident that he has not disclosed the fact where he kept the seized article after having been entrusted to him, more particularly, when he stated that on 31.08.2015 as he has been transferred and had handed over the investigation of this case to [ENTITY], ASI. [ENTITY] has not been examined. From his evidence, it is evident that he had not prepared samples uptil 31.08.2015. When Ext-5 and 6, respective FSL reports have been gone through, it is evident that the order of the Sessions Judge was procured on Patna High Court [CASE NUMBER] dt.18-07-2019 29.09.2015, that means to say, after expiry of more than four months without any cogent reason. Furthermore, it is also evident from the evidence of the PWs that neither there happens to be compliance of [SECTION] of the [ACT] nor under [SECTION] of the [ACT] nay, the material exhibit has been produced in the court.
9. The Hon'ble Apex Court times without number has observed that having stringent in nature the mandate of the [ACT] is to be strictly followed. Moreover, how the seizing, sampling of narcotic drugs and psychotropic substances are to be carried out is found duly explained under [SECTION], [SECTION].
10. Recently, the Hon'ble Apex Court in the case of [PRECEDENT] has held as follows and for better appreciation the relevant para is quoted below:-
"12. For proving the offence under the [ACT], it is necessary for the prosecution to establish that the quantity of the contraband goods allegedly seized from the possession of the Accused and the best evidence would be the court records as to the production of the contraband before the Magistrate and deposit of the same before the Malkhana or the document showing destruction of the contraband.
13. In [PRECEDENT], this Court reiterated the Patna High Court [CASE NUMBER] dt.18-07-2019 necessity of production of contraband substances seized from the Accused before the trial court to establish that the contraband substances seized from the Accused tallied with the samples sent to the FSL. It was held that mere oral evidence to establish seizure of contraband substances from the Accused is not sufficient. It was held as under:
"10. On the other hand, on a reading of this Court's judgment in [PRECEDENT], we find that this Court has taken a view that in the trial for an offence under the [ACT], it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the Accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the Accused would not be sufficient to make out an offence under the [ACT] particularly when the panch witnesses have turned hostile. Again, in [PRECEDENT], this Court found that the alleged narcotic powder seized from the possession of the Accused was not produced before the trial court as material exhibit and there was no explanation for its non-production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the Appellant.
11. Consequent thereupon, the judgment of conviction and sentence recorded by the learned lower court is set aside. Appeal is allowed.
Patna High Court [CASE NUMBER] dt.18-07-2019
12. Appellant is under custody, he is directed to be released forthwith if not wanted in any other case.
([ENTITY], J) perwez AFR/NAFR AFR CAV DATE N/A Uploading Date 19.07.2019 Transmission Date 19.07.2019