1 IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL No. 503 OF 2007 (Against the Judgment of conviction and order of sentence respectively dated 28th March, 2007 & 30th March, 2007 passed by Sessions Judge, Katihar in G.R.Case No. 117 of 2002.) MANGAL RAI @ MANGAL YADAV----------------------------(Appellant) WITH CR. APP (SJ) No.554 oF 2007 RANJAI KUMAR MAHTO-------------------------------------------(Appellant) Versus STATE OF BIHAR---------------------------------------------(Respondents) ------------ For the appellants: Mr. Sharda Nand Mishra, Advocate. Mr. Dhananjay Kr. Gupta, Advocate. Mr. Deepak Kumar, Advocate. (In Cr. Appeal No.503 of 2007) Mr. Abhay Kr. Singh No.I, Advocate. Mr. Parmatma Singh, Bharat Bhushan, (In Cr. Appeal No.554 of 2007) For the State: Mr. Ajay Mishra, Addl.P.P. Mr. S.N. Prasad, Addl. P.P. PRESENT THE HON’BLE MR. JUSTICE CHANDRA MOHAN PRASAD, ------------ Hon’ble C.M. Prasad, J. Both the appeals arise out of the same judgment, hence, they have been heard together and are being decided by this common judgment. 2. The appeals are against the judgment of conviction and sentence respectively dated 28.03.2007 and 30.03.2007 of the Sessions Judge, Katihar, passed in 2 G.R. Case No. 117 of 2002, whereby each of the two appellants has been convicted under Section 20(B)(I) of the N.D.P.S. Act and sentenced to undergo R.I. for seven years and a fine of Rs. 25,000/- and in default of fine to undergo R.I. for one year. 3. The prosecution case as set out in the written report (Ext-2) of the informant A.S.I. Shri Ram Ram (P.W.1) is that on 24.11.2002 at 4.10 p.m., he was on patrolling duty on platform Nos. 9 & 10 of Katihar Railway Station and he was keeping watch over the activities of ante social elements. Constables Ashok Kumar Singh (P.W.5), and Jitendra Singh (P.W.2) were also on duty there. In course of duty, it was at about 9.30 p.m., he (informant) noticed that one man was going towards north on the platform and he was carrying a black colour rexin bag and one person were also going with him and both were gossiping. On the sight of the police personnel he tried to conceal the bag. Seeing them in suspicious condition they were questioned and they disclosed the name as the appellants. It was further stated in the written report that in presence of two 3 independent witnesses Bishnu Mehto (P.W.3), Raju Yadav (P.W.4), the rexin bag carried by appellant Ranjay Kumar Mahto was searched, as a result of which 30 packets wrapped in newspaper containing Ganja like material was recovered. Any document regarding the carriage of the article was not produced hence it was seized and the seizure list was also prepared in presence of the seizure witnesses P.W.3 & 4. About the other appellant namely, Mangal Rai @ Mangal Yadav, the informant stated in the F.I.R. that he had received information that he was engaged in harbouring Ganja smugglers and was also getting Ganja smuggling done under his protection. After the search and seizure the appellants, along with the seized articles and the seizure list, are said to have been handed over to the Rail P.S. Katihar, where F.I.R. (Ext-5) was registered. The I.O. investigated the case and he submitted the charge sheet. On submission of charge sheet the appellants were put on trial, as a result of which they have been convicted and sentenced. The sample of the seized articles i.e., Ganja is said to have been sent to Forensic Science Laboratory, 4 Bihar, Patna and the examination report (Ext-6) of the same was received, wherein the sample was reported to contain Ganja. 4. As many as 8 witnesses were examined by the prosecution. P.W.1 is the informant himself, who supported the assertions in the written report and he deposed that in course of his duty on the railway platform at 9.30 p.m., he noticed that a man was carrying a black colour bag and on the sight of the police he tried to conceal the bag and on being enquired he could not give any satisfactory reply then the bag was checked and 13 packets containing Ganja wrapped in newspaper was recovered. Weighing balance was procured and on weighment, the Ganja was found to be 8 Kgs by weight. In presence of Raju Yadav (P.W.4) and Bishnu Mahto (P.W.3), the Ganja was seized and seizure list (Ext-1) was also prepared. 5. In his examination-in-Chief, the informant (P.W.1) did not state about any kind of participation by the appellant Mangal Yadav in the carriage of recovered Ganja but he simply deposed that both were gossiping. 5 He further deposed that he handed over the recovered Ganja and the two appellants with his written report (Ext-2) to the Officer-in-Charge of the Rail P.S. During cross-examination he stated that nothing was recovered from the appellant Mangal Yadav. He further stated that he took Mangal Yadav and another appellant Ranjay Kumar Mahto, as friends due to the reason that both were gossiping. Thus, the complicity of the appellant Mangal Yadav is alleged only on the ground that he was found gossiping with the other appellant from whom the recovery was made. 6. The P.W.2 Jitendra Kumar Singh, a constable, who is also stated to be on duty on the platform at the relevant time, has stated that appellant Mangal Singh was carrying a bag and when on sight of police personnel he tried to conceal it, he was searched. The bag was opened and Ganja in 13 packets was recovered. He stated about preparation of seizure list in presence of the witnesses. He did not say anything specific about the complicity of the other appellant Mangal Rai and he simply stated that he apprehended 6 two persons, who had disclosed their name as the appellants. In his cross-examination, he stated that Mangal Rai was working on Tea stall at the platform and he occasionally served him tea at the Tea Stall. 7. The P.W.3 Vishnu Mehta and P.W.4 Raju Yadav are said to be the independent witnesses in whose presence the seizure was made. These, two witnesses have turned hostile and they simply admitted their signatures respectively marked as Ext-4 & 4/1 on the seizure list. But they did not support the factum of the search and seizure said to have been made in their presence. In their cross-examination they stated that police had obtained their signature on blank papers. These witnesses were also cross-examined by prosecution but on being confronted to their previous statement before police, they did not admit that they had given any statement before I.O. supporting the factum of recovery, search and seizure and the preparation of seizure list being made in their presence. 8. P.W.5 is another constable who also was on duty on the platform at the relevant time, has given 7 similar evidence like P.W.2 with respect to the search and seizure of Ganja from the bag carried by the appellant Ranjay Mahto and that appellant Mangal Yadav was also apprehended on the platform at that time. He has also deposed in his cross-examination that appellant Mangal Rai is employed in a Tea Stall at the platform which remains open between till 9 to 10 O’ Clock. 9. P.W.6 Asharfi Sahni is stated to be a public witness but he has turned hostile and he stated in his examination-in-Chief that he knew nothing about the occurrence. He has been declared hostile and has also been cross-examined by prosecution but he has denied the suggestion as given by the prosecution that he was suppressing the truth. 10. The P.W.7 Babloo Uraon is the Investigating Officer. He deposed that on 24.11.2002 he was posted at Rail P.S. Katihar and at that time the informant (P.W.1) had handed over to him Ganja weighing 8 Kgs. contained in 13 packets and that the accused persons with written report were also handed 8 over to him by the informant. During his evidence he produced a bag containing seven packets and some loose Ganja. Out of seven packets six were in good condition and one was broken. The I.O. further deposed that he inspected the place of occurrence and he has given the description of the same. He also deposed that he had recorded the statement of the witnesses P.Ws. 3 & 4 and they had supported the prosecution story before him. The statement of these two witnesses as given before him has been produced in his evidence. He proved the F.I.R. Ext-1. In his cross-examination, he stated at para-15 that the seized Ganja was kept in Malkhana but it had not been sealed. Thus, the I.O. says that the seized Ganja was not sealed when he took charge of the same and kept it in Malkhana. In whole of his evidence the I.O. has not said anywhere that he had taken any sample of the Ganja or had sealed the same or had sent any sample to Forensic Science Laboratory for examination. Thus, the evidence of this witness (I.O.) is completely silent over the matter. Prosecution has not brought any evidence in this regard to show as to when the sample of the Ganja 9 was taken or who took the sample or whether it was sealed or whether it was sent for any chemical examination. 11. During argument learned counsel for the appellant Mangal Rai submitted that this appellant has been implicated on suspicion that he was harbouring smugglers and that he was engaged in smuggling Ganja but there is no evidence to substantiate this allegation. It was argued that the only evidence adduced against him is that he was found gossiping the other appellant Ranjay Kumar Mahto from whom Ganja is said to have been recovered. It is also pointed out that the P.Ws. 2 & 5, who are police personnel have stated in their cross- examination that Mangal Rai was employed at a Tea Stall on the platform. Thus, it was argued that he had sufficient reasons to be on the platform at that time. In the whole of the prosecution evidence, there is nothing except this that he was found gossiping with another appellant Ranjay Kumar Mahto. Only this much of evidence is not sufficient to hold that this appellant was engaged in the carriage or smuggling of Ganja as 10 alleged. 12. Learned counsel for the appellants raised vital questions regarding non-compliance of the mandatory provisions as enunciated under Section 55 of the N.D.P.S. Act. Section 55 reads as follows:- “55. Police to take charge of articles seized and delivered.- An officer-in-Charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-Charge of the police station.” From perusal of the provisions under Section 55 it clearly shows that the seized narcotic substance is required to be sealed by the person who produces the same before the officer-in-charge. The provisions also show that the sample taken out of the seized narcotic 11 substance shall also be sealed by the officer-in-charge. The requirement of sealing the seized substance and the samples taken out are mandatory in nature. It has been provided by law in order to secure that the very material seized is sent for chemical examination and there may not be any chance of interpolation. 13. In the instant case, the P.W.1 (informant) who has seized the Ganja stated in his evidence that after seizure of the same he had prepared seizure list but he does not say anywhere in his evidence that he had sealed the same at any time before handing over the same to the officer-in-charge. The investigating officer (P.W.7) who was also duty bound to seal the samples does not testify anywhere in his evidence that he had sealed any sample. Rather, he has remained silent even on the issue that any sample was taken out of the seized Ganja. The Ganja was kept at the P.S. in an open condition. According to the case of the prosecution, 13 packets of Ganja were recovered but when it was produced in Court only six packets were in good condition, one packet was broken and besides that there was some other loose Ganja. No 12 explanation has been offered as to how the Ganja was kept and why only seven packets were produced when the recovery is said to have been made in 13 packets. No doubt, there is report (Ext-6). of the F.S.L. which shows that one sample sent to it was found to contain Ganja. But there is no explanation by prosecution as to from which packet the sample was taken when the Ganja was recovered in 13 packets. There is also no evidence to prove that the seized Ganja was sealed or that any sample was taken and sealed. Thus, there is clear violation of the mandatory requirements of the sealing of the recovered article and the samples taken as provided under Section 55 of the N.D.P.S. Act. Besides this, in absence of any evidence on the point of sealing of recovered Ganja and the taking of samples and its sealing a reasonable doubt is entertained over the prosecution story that any such sample was taken and the same was sent to the F.S.L. which is said to have been examined there. In such view of the matters, the prosecution case with regard to the recovery of the Ganja and the taking of its sample and sealing it and then sending it to the F.S.L. 13 appears to be surrounded with grave doubt. Therefore, the prosecution case is held not proved beyond doubt. The appellants are entitled to be acquitted of the charge. Therefore, they are acquitted of the charge. 14. The appeals are accordingly allowed. Appellant Mangal Rai @ Mangal Yadav is no bail. He is discharged from the liabilities of his bail bonds. The appellant Ranjay Kumar Mahto is in custody, he is ordered to be released forthwith if not required to be detained in any other case. Patna High Court, Dated, the 20th April, 2010 N.A.F.R./Mkr. (C.M. Prasad, J.)