Patna High Court CR. APP (SJ) No.165 of 1997 dt.08-07-2011 1 Criminal Appeal (SJ) No.165 of 1997 ------- Against the judgment and order of conviction dated 16th June, 1997 and 17th June, 1997, respectively, passed by the 1st Additional Sessions Judge, East Champaran, Motihari, in Excise Case No.107/1 of 1995-97. -------- =========================================================== Manoj Kumar @ Manoj Prasad son of Jawahar Lal, resident of village- Dopahi, Police Station-Gour, District- Rohthat (Nepal) .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s =========================================================== Appearance: For the Appellant/s : None For the Respondent/s: Mr. R. B. Roy ‘Raman’, APP =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH) 1. The appellant has been convicted under section 20(b) of the Narcotics Drugs and Psychotropic Substance Act and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.20,000/-, and in default of payment of which one year rigorous imprisonment by the 1st Additional Sessions Judge, East Champaran, Motihari, in Excise Case No.107 of 1995-97 dated 16.06.1997. 2. The case of the prosecution according to Sanjiv Kumar Thakur, Sub-Inspector of Excise is that on 26.12.1995 a bus was intercepted and passengers were searched in course of which from a bag allegedly held by the appellant Ganja was recovered weighing two kg. 3. During trial, the prosecution examined six witnesses, out of whom, PW 1 and 2 are the Conductor and the Driver of the alleged bus but both of them did not support the case of the prosecution and were declared hostile. These are the Patna High Court CR. APP (SJ) No.165 of 1997 dt.08-07-2011 2 two independent seizure witnesses. PW 3 and 4 are Sepoys of the Excise Department. PW 3 has stated that in course of search on the left side of the seat where the appellant was sitting a plastic a bag was found which contained 2 kg of Ganja. PW 4 has stated that PW 3 was the person who had produced the appellant before the Officer-in-charge with articles. As per the evidence of PW 4, it appears that it was PW 3, who had effected recovery. PW 6, who was in-charge of the Excise Check Post, has stated that in a routine check of the bus plying on that road a bag was recovered from the hands of the accused-appellant in which Ganja was concealed. Further from the evidence of PW 3 and 4, it does not appear that PW 6 was the person who had effected search. 4. From the evidence of the three witnesses, I find that the mandatory provision of section 52 of the Narcotics Drugs and Psychotropic Substance Act with regard to option of search to the accused has not been followed which renders the prosecution case unreliable. Further on close reading of evidence of PW 3, I find that the articles had not been seized from the conscious possession of the appellant and, therefore, in the facts of the case the appellant deserves to be acquitted by giving benefit of doubt. 5. In the result, the appeal is allowed and the appellant is acquitted of the charge. He is also discharged from the liabilities of his bail bonds. (Anjana Prakash,J.) Patna High Court Patna. Dated the 8th July, 2011 NAFR/ JA/-