Criminal Appeal (SJ) No.389 of 2009 Against the judgment of conviction and order of sentence dated 21.04.2009 and 27.04.2009 passed by Ist Additional Sessions Judge-cum- Special Judge, Kaimur at Bhabhua in Trial No.36 of 2002 arising out of Ramgarh P.S.Case No.133 of 2000. JAISHREE SAH--------------------------(Appellant) Versus STATE OF BIHAR--------------------------Respondent ---- For the appellant:- S/Sri Vikram Deo Singh & Pawan Kumar Singh, Advocates. For the State:- Sri Satya Narain Prasad, A.P.P. ********** P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The solitary appellant Jaishree Sah was charged of the offence under Section 21 of the Narcotic Drugs and Psychotropic Substance Act(‘the Act’ for short) on account of being found in possession of 25 grams of heroin, recovered from one of the pockets of his pant kept in polythene sachet. He was put on trial by the learned Special Judge-I, Kaimur at Bhabua in Trial No.36 of 2002 and by judgment dated 21.04.2009 he was found guilty of committing the offence. After being heard on sentence on 27.4.2009, the appellant was sentenced to rigorous imprisonment for ten years as also to pay a fine of Rs.1,00,000/-, else to suffer additional term of rigorous imprisonment for one 2 year. The appellant appeals against the judgment and order of sentence. 2. P.W.1 is the informant of the case and he stated in his report that while he was near the Block Development Office, he found that a person seeing the police started running away, who was chased and caught at the very gate of the office. He was given option that if he so liked he might be searched either before a Magistrate or a gazetted officer upon which it is stated that the appellant expressed no objection, if the informant himself searched his person. On search, as just narrated, 25 grams of heroin kept in a polythene sachet was recovered from one of the pockets of his pant. 3. The seizure was made and the appellant was taken into custody. 4. The case was registered by drawing the FIR (Ext-3) on the basis of the written report of P.W.1, Ext-2. It appears that the seized article was sampled and was forwarded to the Forensic Science Laboratory, Patna and the report submitted by the F.S.L. indicated that the recovered article was heroin. On these materials, the appellant was forwarded for his trial which ended in the impugned judgment. 3 5. It was contended by Sri Vikram Deo Singh, learned counsel appearing for the appellant that the date of occurrence was 20th of October, 2000 and the sampled article was dispatched through a special messenger as may appear from the report of the F.S.L. on 29.10.2000 but it reached the laboratory on 21.11.2000. Not only that, the report on analysis of the sampled seized article was prepared on 5.7.2001 which indicated that there was a delayed receipt of the sampled article as also submission of the report. It was, as such, contended that the very case appears doubtful as regards the genuineness of the substance which was recovered allegedly from the appellant. Contention further was that there was no evidence as to what happened of remaining part of total quantity of 25 grams of heroin which was allegedly recovered from the appellant as there was no report or evidence in the light of Section 52A(4) of the N.D.P.S.Act which makes the reports regarding the certification of correctness of inventory in presence of the Magistrate and drawal of the representative samples of the drugs admissible as primary evidence. It was contended that in fact there is nothing on record to indicate that the recovered article was even transferred into the possession of the officer-in- 4 charge of the police station in the light of the provisions of Section 55 and in spite of the provision requiring the sampling to be done both by the officer, who had seized the article, and the officer-in-charge of the police station in presence of the Magistrate, the evidence indicates that the recovered articles were divided in equal two parts and thereafter the sampling was made at the spot. There was no evidence that any representative sample was sealed and the evidence in that behalf was produced. It was, as such, contended that even if the court believes that there was some recovery the non-production of the evidence on compliance of the necessary provisions, like, that contained in Sections 52A and 55 of the Act raises a serious doubt about the genuine character of the recovered article that it was heroin. No further argument was forwarded by the learned counsel appearing for the appellant. 6. Sri Satya Narain Prasad, learned counsel appearing for the State has resisted the submissions on the ground that sampling was done by the officer P.W.1 at the spot and that was dispatched and duly received by the F.S.L. and there might have been some delay but that has to be appreciated in the light of the fact that there 5 could be many samples lined up for chemical analysis and that may cause the delay in chemical analysis and submission of the report. Submission further was that the provisions of the N.D.P.S. Act had duly been complied with in spite of the fact that there was some deficiency as regards the lack of evidence or complete absence of evidence on the fact regarding the storage of remaining part of the seized article and its destruction as per the provisions of Section 52A of the Act. 7. The evidence of the prosecution comes from three witnesses, i.e., P.Ws.1, 4 and 5. P.W.1 is the informant and P.W.4 and 5 are the constables who were accompanying the informant in his team of police party while he was on patrolling duty. The evidence of three witnesses proved the fact that the appellant was caught by the informant and was also searched whereupon some articles were recovered from one of the pockets of his pant. The remaining two witnesses, namely, P.Ws.2 and 3 are witnesses to seizure but they do not appear supporting the search and seizure in their presence though they have admitted the fact that the seizure memo was bearing their signatures. Thus, the court is satisfied on the evidence about the search of 6 the person of the appellant and recovery of certain articles from one of his pockets. 8. The above could not be sufficient for proving the charges under the N.D.P.S.Act. Sentences being stringent, certain provisions have been set down in the scheme of the Act so as to creating checks and balances on the misuse of the powers by officers empowered to enter a premises or any other vehicle or vessels etc so as to searching it on suspicion of containing some prohibited material under the Act. Likewise, powers have also been vested in certain officers of different departments to search a person. As regards the search of a person, if the information is received in advance about the person being possessed of certain materials which is prohibited article under the Act then the compliance of Section 50 is a mandate but if there is no prior information as in the present case, then in that case the provision of Section 50 of the Act has never to be complied with. But in spite of that there are certain provisions which have been formulated by the legislature, as may appear from the provisions of Section 52A of the Act, which indicates that the recovered article has to be seized and forwarded to the officer-in-charge of the nearest police station 7 and the officer-in-charge shall prepare an inventory of such narcotic drugs by putting down the details of the article including its packaging the place of initiation and other details as may appear from Section 52A(1)of the Act. Thereafter, the inventory has to be got certified by deputation of a Magistrate who has also to over see the drawal of the representative samples of the drugs. These are requirements of law so much so that if an application is made in that behalf before the Magistrate he has simply to allow the application without raising any objection in the above behalf. This may be found from the very provisions of Section 52A(3)of the Act. If the act required the drawal of the samples before a Magistrate and if the Act further required, as may appear the provisions of the 55 of the Act, that both the officer-in-charge and the officer making the seizure have to draw the samples and put their individual seals, then the evidence of P.W.1 that he was sealing the seized articles at the very spot appears contrary to the provisions of Section 55 and 52A of the Act. Not only the officer-in-charge was by-passed in the matter of sampling but no order on deputation of a Magistrate as is required by Section 52A was sought and obtained from the 8 concerned court and as such there is no evidence which is the primary evidence as per Section 52A(4)of the Act that the samples were drawn in presence of the Magistrate by the officers as indicated by Section 55. 9. I have already noted that mere evidence and seizure may not be sufficient to prove the charges. The prosecution is required to satisfy the conscience of the court by proving the charges to the hilt after production of admissible required evidence as per the provisions of the Act that the provisions were complied with so that no chances of adultering or replacing the material could be existent. The rule of evidence of the Indian Evidence Act are also applicable to the trial proceedings of cases under the Act, but there is some special rules of evidence also which are set down by the Act as has been just noticed by virtue of Section-52A(4)of the Act. Mere production of the orders of certification or report signed by a Magistrate on trial of the sample have been directed to be deemed to be primary evidence. A Judicial Magistrate could never be conspiring or colluding or even lacking in the performance of his judicial duties. That having not been done, this court views the evidence with suspicion the fact 9 that the same article was sampled and transmitted to the Forensic Science Laboratory. 10. Another angle from which the court suspects the act of sampling and dispatching it to the F.S.L. is that the date of seizure, i.e., the date of occurrence is the 20th of October, 2000 and as per the F.S.L. report Ext-4 the date of discharge was 29.10.2000. The same report indicates that Chaukidar C-26 Vishundeo Hazara had been deputed as special messenger to carry the sampled articles to the F.S.L. The article was sampled by the officer of Ramgarh police station in the district of Kaimur which distance in my considered view could be travelled in a maximum of six hours by any available conveyance through road. The purpose of deputation of a special messenger could very much be understood by the fact that the officer dispatching the sampled article was acting under an urgency of sending the article and getting it received there in the F.S.L. But the report, Ext-4, indicates that the sampled article was received in the office of the F.S.L. on 21.11.2000, i.e., after about a month of its dispatch by special messenger. This is quite surprising and disturbing as well, as to how the special messenger could be taking about a month to travel from 10 Ramgarh police station to reach the laboratory of F.S.L. at Patna in about 22 days to get the sampled articles received there. It may be true that huge number of sampled articles could have been received by the F.S.L. Therefore, it might be taking some time in preparation of the report. But in absence of any evidence explaining these factors, this court cannot imagine situations which do not appear emerging from the evidence. This court relies upon by the Supreme Court decision in Valsala Vrs. State of Kerala reported in 1994 Cr.L.J.1 in which under similar circumstances, the Supreme Court was holding that there could be a real suspicion about the genuineness of the article which was recovered and which was sent to the F.S.L.. If there was a delay in dispatch and receipt of the sampled article, then there could be real suspicion that the recovered article was not the article which was dispatched to the F.S.L. 11. These are the inferences emerging from the evidence and records of the case. It was a case in which the accused ought to have been acquitted on account of being given the benefit of doubt. 12. In the result, the same benefit is extended to appellant Jaishree Sah by allowing the present appeal. He is acquitted of the charge. He 11 is in custody. He shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 11th May, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)