IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No. 186 of 1997 Against the order of conviction dated 12.06.1997 and judgment dated 13.06.1997 passed by Shri Bijay Kumar Verma, Learned 3rd Additional Sessions Judge, Rohtas at Sasaram in S.S.M. 563/93 (N.D.P.S.) (G. R. No. 1900/93). Kaushalya Devi, W/O. Shri Ram Janam Bind, resident of Village – Beda Banarsia, Police Station, Sasaram (Muffasil), District – Rohtas. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. With Criminal Appeal (SJ) No. 273 of 1997 1. Gulab Bind, Son of Sampat Bind. 2. Lakhan Bind, Son of Chandra Bind. Both resident of village – Beda, (Banarsia), Police Station – Sasaram (M), District – Rohtas. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. With Criminal Appeal (SJ) No. 294 of 1998 Bigu Bind, Son of late Jung Bahadur Bind, resident of village – Beda Banarsia, Police Station – Sasaram (Mufassil), District – Rohtas. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. With Criminal Appeal (SJ) No. 200 of 1997 Rakesh Yadav, Son of Suresh Yadav, resident of village – Darauli, P.S. – Durgawati, District – Kaimur (Bhabhua). .... .... Appellant. Versus The State Of Bihar .... .... Respondent. -------------- For the Appellants : Mr. Vikram Deo Singh, Advocate. Mr. Sada Nand Roy, Advocate. 2 Mr. Ambika Bhagat, Advocate. Mr. Kamal Kumar Sinha, Advocate. For the Respondents : Mr. Sujit Kumar Singh, A.P.P. --------------- P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. These four appeals are being heard together and disposed of by the common judgment and order as these four appeals arise out of the same judgment and order dated 12th and 13th June, 1997 respectively passed by Shri Bijay Kumar Verma, learned 3rd Additional Sessions Judge, Rohtas at Sasaram in S.S.M. 563/93 (N.D.P.S.). 3. All the appellants have been convicted under Sections 21 and 22 of the N.D.P.S. Act and have been sentenced to undergo rigorous imprisonment for ten years under Section 22 of the N.D.P.S. Act and a fine of Rs.1,00,000/- each and in default of non-payment of fine they will have further to undergo rigorous imprisonment for two years and have further been convicted under Section 21 of the N.S.P.S. Act and sentenced to undergo rigorous imprisonment for ten years. However, it has been ordered that both the sentences shall run concurrently. 4. The prosecution case as alleged in the fardbeyan is that the informant got secret information at about 5:30 A.M. that in Beda Banarasiya village the heroin is being sold openly. The informant proceeded for verification of the information with his raiding party. In presence of two independent witnesses Ramashish Bind and Radhey Chaudhary conducted search in the village of Beda Banarasia and from the pocket of Bigu Bind three pockets of heroin weighing about 100 grams 3 and cash of Rs.60/- was recovered, again from the person of Lakhan Bind three packets of heroin weighing about 100 grams and case of Rs.40/-, from the person of Gulab Bind three packets of heroin weighing 100 grams and cash of Rs.37, from the person of Rakesh Yadav five packets of heroin weighing about 150 grams and cash of Rs.40/-, from the possession of Kaushlya Devi wife of Gulab Bind one packet of heroin weighing 100 grams and cash of Rs.30/- was recovered, from the person of Kaushlya Devi wife of Ram Ramjanam Bind one packet of heroin weighing about 150 grams was recovered and cash of Rs.30/-. With regard to the seized heroin no paper was produced even on demand and hence all the articles were seized. The seizure list was prepared and the independent witnesses signed on the seizure list. 5. On the written report, FIR was drawn and after investigation a charge- sheet was submitted for offence under Section 17, 18, 22 and 27 of the N.D.P.S. Act. The cognizance was taken and subsequently a charge was framed under Section 21 and 22 of the N.D.P.S. Act. 6. However, during the trial nine witnesses were examined and some documentary evidence also proved marked as Exts. 1 to 7 are the seizure list. Ext. 1 to 1/5 six seizure lists, Ext. 2 written report, Ext. 3 forwarding report, Ext. 4 signature on formal FIR, Ext. 4/1 to 4/6 Signature of Radha Choudhary on the six seizure lists, Ext. 5 forwarding letter, Ext. 6 Chalan, Ext. 7 Attested photo stat copy of FSL report. 7. After considering the oral and documentary evidence the order of conviction and sentence recorded as stated above. 8. Learned counsel for the appellants, however, contended that there is violation of Section 50 of the N.D.P.S. Act that the accused persons were not 4 asked whether they liked the search to be made before a Magistrate or the Gazetted Officer and further the seized articles were neither weighed nor sealed nor sampled at the place of occurrence nor there is any evidence that it was sampled properly nor there is evidence that the said heroine was sent for chemical examination so there is violation of mandatory provision and the F.S.L. report which is only photo stat copy of the F.S.L report is neither amicable nor worthy of reliance. 9. Learned counsel for the State, however, submits that the raid has been conducted and the witnesses have deposed in their evidence that the accused persons were asked whether they wanted their search to be made before a Magistrate and hence there is compliance of mandatory provision. However, it has been contended that there is no evidence that the said seized heroine was not ever sealed or sampled or sent to F.S.L. 10. However, from perusal of the record and evidence, it is apparent that though the witnesses have supported the prosecution case about the seizure of heroine packets from the appellants, however, there is evidence that the articles were seized in packet and seizure list was prepared but there is no evidence that the seized articles were ever sealed or sampled and the State has also not disputed this fact. The I.O. has not been examined and there is no evidence who kept the said articles, who sent the sample to F.S.L. Hence, verifying the articles without sealed and sampled is violation of the mandatory provision. 11. P.W. 7 has said that the seized heroine kept in polythene and the said seized heroine was marked as material Ext. 1 and has stated that he has kept the heroine by the order of the officer-in-charge. However, he has stated that there is 16 packets of heroine and there is Rs. 230/- and he cannot say whether there is signature of any accused on the said packet. He has further stated that he does not 5 know whether there is any signature of any police officer on the polythene packet which is not sealed. 12. Hence, having regard to the fact since there is no evidence that after the seizure the seized heroine was ever sealed and packet produced before the F.S.L. is not sealed, no evidence who sent the sample before the F.S.L and hence the report of the F.S.L under the facts and circumstance is neither worthy of reliance nor can be taken into consideration and hence on the basis of the F.S.L. report it cannot be stated that the seized articles are heroine. The order of conviction recorded on the basis of the F.S.L. report is not sustainable and hence the order of conviction and sentence recorded by the learned lower court is set aside and the appeal is allowed. The appellants are discharged from the liability of the bail bonds, if any. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 12th July, 2011. N.A.F.R./Kundan.