CRIMINAL APPEAL (SJ) NO.180 OF 2008 MOHMMAD RIYAZ @ BABUWA @ BABUDDIN………Appellant Versus STATE OF BIHAR……………………………………………………Respondent CR. APP (SJ) No.227 of 2008 DAROGA RAI……………………………………………………………Appellant Versus THE STATE OF BIHAR……………………………………………………Respondent CR. APP (SJ) No.151 of 2008 VIJAY KUMAR…………………………………………………………………………Appellant Versus STATE OF BIHAR…………………………………………………………………Respondent ----- For the appellants:- Sri Rana Pratap Singh, Sr. Adv Sri Sumant Singh and Sri Aaruni Singh, advocates with him. For the State:- Sri Ajay Mishra, A.P.P. Against the judgment of conviction and order of sentence dated 09.01.2008 and 10.01.2008 passed by Ist Additional Sessions Judge, Saran in N.D.P.S.Case No.15 of 2004 ------ P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The three appellants one each in the three appeals were put on trial by the learned Ist Additional Sessions Judge, Saran at Chapra for the offences under Sections 20 and 22 of the Narcotic Drugs and Psychotropic Substance Act(„the Act‟ for short)in N.D.P.S.Case No.15 of 2004 and by judgment delivered on 9.1.2008, the three appellants were found guilty of having committed the offence under Section 20 of the Act and each of the three appellants was 2 directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.1,00,000/- each in default of which each of them was further directed to suffer rigorous imprisonment for three years. The three appellants have preferred the three appeals challenging the judgment of conviction and order of sentence. 2. P.W.5 Bijendra Kumar Shahi addressed a written report to the Circle Inspector-cum- Officer-in-Charge of town police station, Chapra stating that he was on patrolling duty with the constables named in the written report and when they had reached near the railway crossing situated at Chapra Katchari, he found that three persons were coming from west near the Hanuman temple situated there. It was stated that as soon as the three persons saw the police party they turned around and started running. The informant chased the three and captured them and in presence of Gopal Mahto and Baleshwar Mahto(P.W.4) questioned thereupon which they divulged their names and they were the three appellants. The informant, thereafter, conducted the search of the three appellants upon which it was alleged that appellant Md. Reeyaz @ Babuwa @ Babuddin was found carrying half K.G. of charas 3 whereas appellant Daroga Rai had in his possession, the same substance weighing 200 grams. So far as recovery from Vijay Kumar is concerned, it was 300 grams of charas. Accordingly, the three appellants were arrested and were brought to the police station, but before that the informant (P.W.5) made hectic attempts to contact the S.D.M., Chapra but could not find him on telephone so that the three appellants could be searched before him and, lastly, the three appellants were brought to the police station where the written report, Ext-2 was filed. 3. On the basis of Ext-2, the FIR of the case Ext-3 was drawn up by P.W.7, the Investigating Officer of the case who proceeded to investigate the case. Prior to lodging the report P.W.5 had prepared the search memo Ext-1 in respect of the recoveries made from each of the three appellants. P.W.7 inspected the place of occurrence and thereafter recorded the statements of witnesses. He also sent the recovered articles after sampling it to the Forensic Science Laboratory for Chemical Analysis as a result of which the report Ext-5 was submitted by the Regional Forensic Science 4 Laboratory, Muzaffarpur. Finding materials sufficient, P.W.7 sent up the three appellants for trial which ended in the impugned judgment. 4. After taking me through the evidence of eight witnesses and five witnesses examined by the defence, it was contended by the learned senior counsel appearing in Cr.Appeals no.180 and 151 both of 2008 that even if the court excludes the arguments that Section 50 of the Act was not required to be complied as could be in respect of Mohmmad Riyaz @ Babuwa @ Babuddin, the same was required to be complied before the remaining two appellants, namely, Daroga Rai and Vijay Kumar were searched. It was contended that the seizure was made on 6.11.2004 but as per the F.S.L. report the sampled article was dispatched from the police station on 23.11.2004, i.e., after 17 days of its seizure and the same was received on 18.1.2005, i.e., after about two months of its dispatch and lastly the report of the F.S.L. was prepared on 8.10.2009, i.e., after about nine months of the receipt of the sample and these dates go to create a serious doubt about the genuine article being dispatched to the F.S.L. for analysis and report. It was contended that P.W.5 B.K.Sahi, the informant of 5 the case does not say that he had taken out any part of the seized article for sampling and he clearly admits in paragraph-15 that he had not dispatched the sample for chemical analysis. Not only that he does not even state that he had informed the Dy.S.P. Town or any other superior police officers about the recovery of charas after search of the three appellants which was required to be done under a particular provision of the Act. As regards the evidence of the investigating officer, he does say that he had dispatched the seized article for chemical analysis but has stated that he had received three sealed packets from the Malkhana Incharge and from those three packets he had taken out the samples for sealing them and dispatching them to F.S.L. But that evidence does not get corroborated from the evidence of P.W.5 that he along with P.W.7 had put the seized articles in the charge of the Officer-in-Charge of the police station and P.W.5 had put their own respective seals after making the relevant entries as is required under 52A of the Act, nor there is further evidence that P.W.5 and the investigating officer who was also the officer- in-charge of the police station had together 6 sampled the seized articles for being dispatched to the F.S.L. It was contended that in fact the evidence of P.W.5, the informant of the case has stated in paragraph-11 of his evidence that after having arrested the accused persons and recovered the articles he reached the police station and handed the seized articles to the literate constable. It was contended in the light of these evidences that the order of conviction passed by the learned trial Judge was not sustainable in the eyes of law and the appellants deserve to be acquitted of the charges. 5. Sri Ajay Mishra, learned counsel appearing for the State has resisted the submissions by submitting that the factum of seizure from each of the appellants appear unaltered and that aspect of the matter is beyond doubt. The evidence of police officers who examined themselves indicates that the three appellants were caught and on search were found possessing charas. The contention of the appellants that the seizure memo Ext-1 was a fabricated report because it was bearing the police station case number was castigated by the learned counsel for the State by pointing 7 out that the seizure memo was not initially containing the police station case number. It appears that it was a later insertion after the case had been registered and as such the number of the case appears at its top. Otherwise, there was no reason why a dismal would have been used by the police officer as regards the evidence especially that of P.Ws.5 and 7 and storage of the seized articles and taking out the samples therefrom. The learned A.P.P. was fairly conceding that it could be the view of the court in the light of the evidence and he could not say much on that. If the evidence raises some inference which could find favour with the court, else it was contended that the judgment appears not suffering from any such defect as could render it liable to be set aside. 6. The exigency of complying with the provisions which are contained in the Act, was considered by a Division Bench of this Court to which I was also a party. The case of Ram Singh Vrs. State of Bihar reported in 2011(1)PLJR 195 discusses the stringent provisions and as such the requirement of courts to act very slowly on evidence which indicate non-compliance of the provisions of the Act. The observations of this 8 court are recorded in paragraph-13 of the report and I am simply tempted to reproduce that particular part of the judgment:- “The law is stringent as regards the punishment. The minimum punishment is ten years, which may extend to life in some cases and the fine, in most of the cases, could not be more than one lack rupees. Confessional statement before the police or confession of a co accused, if it has been reduced into writing, has been made admissible by raising presumption of guilt against the accused, which presumption is required to be displaced by the accused. These are some of the legal impediments which have been created in spite of the normal principles of criminal jurisprudence being a contrary to them, considering that the offence which are defined and which are made punishable under the NDPS Act, are not only to destroy the fabric of society but, are also to take a heavy toll of our national economy. Thus, the legislation was attempting to device ways and means so as to tackling the menace of drug trafficking. But, when it comes to judging, the courts have also to balance the interest of justice and the national interest with the liberties of a person besides keeping in view that the check and balance which have been created by the provisions of the NDPS Act are strictly complied with. This is the reason that courts are very slow in acting on evidence, which indicate non compliance of the provisions of the aforesaid Act. Besides, if they find that there is any loopholes in compliance with the provision as rigors and strict as Section 52-A or 55 of the NDPS Act, then it has always to extend the benefit of doubt to the accused.” 7. Thus, the court was making a distinction between the legislative exigencies of legislating the law containing as stringent 9 provisions as could be in the Act and at the same time the requirement of a judge so as to judging the facts of a case by applying the law to those facts. Prior to that the Division Bench of the Court was considering the impact of non- compliance of the provision of Section 55 of the Act and was expressing its views on that particular provision besides the other provision contained in Section 52A of the Act in paragraph-12 of the said decision in Ram Singh (Supra), I am again tempted to reproduce paragraph-12 of the judgment which reads as under:- “Section 55 of the NDPS Act mandates that as soon as any article which is suspected to be a narcotic substance or drug is seized, it has to be put into the charge of the Officer Incharge of a police station and that police officer incharge shall allow the sampling of the seized article by the officer who had brought the substance or had accompanied the substance up to the police station for putting it into the charge of such an officer incharge. It is further directed by the provision that while sampling the article, the Officer Incharge of the police station has to put his own seal over the sampled article alongwith that of the officer who had been deputed for sampling the article. We do not have any evidence coming from any of the witnesses including P.W.3, the Superintendent of Police who was heading the preventive team that the article was, after its seizure, made over to the Officer Incharge of the police station in whose jurisdiction the seizure was made and that the said police officer was 10 present and allowed the sample to be taken in his presence and in token thereof, he had put his own seal over the sampled article, which might be contained in any container. We do not have any evidence coming from any of the witnesses as to what happened of the article after it was recovered and seized. As per Section 52-A of the NDPS Act, it has to be produced before the Officer Incharge of the police station who is required to prepare an inventory of such substance containing such details relating to their description, quality, quantity, made of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, place of origin and other particulars as the officer may consider relevant for the identification of the narcotic substance. In case, the above formalities have been fulfilled, then the Officer Incharge of the police station has to make an application to a Magistrate for certifying the preparation of the inventory with above details and the Magistrate shall, as may appear from Section 55 of the NDPS Act, further certify the same. These are legal mechanism developed to check the tampering of any sort in the storage as also in sampling of the seized article.” 8. Thus, what may appear from the above observations of the Division Bench of this Court is that the provisions of the Act being stringent, the court has to ensure that they have properly been complied and observed while investigating a case and if the court comes across any instances of non-compliance with some of the provisions, even if they were not 11 mandatory and merely obligatory, if a case of prejudice or unfair investigation is made out then the benefit must accrue to the accused. 9. The evidence of P.W.5, the informant is that after having seized the articles he came to the police station and put the articles in custody of the literate constable(P.W.5 para- 11). In paragraphs-14 and 15 of P.W.5, the informant has further stated that he did not draw any samples out of the seized materials nor did he send the material for chemical analysis after having sealed them as required under law. The provisions of the Act require that as soon as any narcotic drugs or substance or any unauthorized material is seized, then the custody thereof has immediately to be handed over to the officer-in-charge of the police station who shall make an entry about the receipt and other details of the material in a register maintained in that behalf and shall put his own seal and allow the officer who brought the materials to the police station to put his seal also. The purpose of the provision which may be found in Section-55 of the Act is that the seized articles are never allowed to be adulterated or re-placed. The sanctity of the 12 seized article is sought to be maintained by inserting in the Act the provision of Section- 55. Not only that when the legislature was enacting Section 52A on disposal of the seized Narcotic Drugs by deputation of a Magistrate through a judicial order of the court then, as I see, the attempt was not to allow the seized articles to be reused for implicating some one who the police may be targeting. Besides, the above, further attempt could be to prohibit the transplant of the seized articles for any other nefarious reasons, upon some innocent person. For, are not they often dishonest in their official duties also? These are some of the provisions to be kept in its mind by a court when the evidence of a witness has to be considered and it is highly recommended that when considering the evidence in a case which is being tried by a court, the court must strictly ensure the compliance to these provisions so as to finding out whether there might be any room of either adulterating, varying or replacing the seized articles. 10. If P.W.5, the informant of the case was not handing over the seized article to the officer-in-charge, i.e., P.W.7 who also does not 13 say that he had received any seized article, then no court could say that the provisions of Section-55 of the Act were complied with. P.W.7 in paragraph-5 of his evidence stated that he received three packets of seized article from the Malkhana Incharge of the police. I have already pointed out that there is no evidence which could have come by production of the relevant register of the police station that the seized article was put into Malkhana either by P.W.5 or P.W.7. Both P.Ws.5 and 7 are silent on that aspect of the case, least to talk of both of them stating that they had entrusted the seized articles even to Malkhana Incharge. P.W.5 it may be pointed out, was stating to the court that he handed over to the seized articles to the literate constable of the police station. There is no evidence in support of that evidence as the literate constable has not been examined, nor the Malkhana Incharge from whom P.W.7 claimed having received three sealed packets has come forward even to state orally without producing the relevant register, that he was handed over the seized articles and he had placed the articles required before P.W.7 for sampling purposes. When Section-55 further 14 requires that the officer seizing and the officer receiving the custody of the substance, both have to remain present at the time of sampling and both should place their individual seals for identification and security purposes, then the absence of evidence in that behalf could simply lead to a conclusion that the seized article was never put in the Malkhana of the police station and the article from which the samples are claimed to be drawn by P.W.7 might not be the same which had been seized by P.W.5. 11. The above could be the reason for the learned senior counsel to make submission by referring to a few relevant dates. The seizure was undisputedly made on 6.11.2004 and the dispatch as per the F.S.L. report Ext-5 from the police station was on 23.11.2004. P.W.8 is the constable who says that he was deputed as the special messenger to take the sampled articles to the F.S.L. How could P.W.8 reach Regional Forensic Science Laboratory, Muzaffarpur from Chapra in a period of about two months that‟s, on 18.1.2005 is a mystery which could not be solved by evidence available on record. There is no explanation coming either from the 15 investigating officer (P.W.7) or P.W.8 himself as to after being entrusted with the sampled articles on 23.11.2004 where was P.W.8 till he reached the F.S.L. to get the articles received in its office on 18.1.2005. Yet another defect in the prosecution case appears from the date of the report which is 8.10.2005, that is to say, that why the report was submitted after about nine months of the receipt of the F.S.L. report also goes unexplained. This court on many occasions has placed reliance upon one Supreme Court judgment reported in 1994 Crl. Law Journal Valsala Vrs. State of Kerala in which the Supreme Court was considering the delayed dispatch along with the delayed receipt besides the delayed analysis of the sampled articles to hold that a doubt could very well exist that the same article had never been dispatched for analysis and might be that the real seized articles had been replaced. On this score alone the Supreme Court acquitted the appellant before their Lordships. This is a case which is squarely covered by Valsala‟s case(Supra). 12. In view of the defects which I have just noticed which arise out of evidence available on record, I find merit in the three 16 appeals and accordingly, the batch of three appeals is allowed. The three appellants are acquitted of the charges. Their conviction and sentences passed upon them are hereby set aside. 13. Appellant Daroga Rai is in custody and the remaining two appellants of the two appeals are on bail. Daroga Rai shall be released forthwith, if not wanted in any other case. As regards the two appellants, namely, Mohmmad Riyaz @ Babuwa @ Babuddin and Vijay Kumar, they shall stand discharged from the liabilities of their respective bonds. Patna High Court, Dated, the 3rd of May, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)