Criminal Appeal (SJ) No.183 of 1998 **** Against the judgment, dated 02.05.1998, passed by Shri Binoy Kumar Sinha, Additional Sessions Judge, II, Bhojpur, in N.D. Case No. 35 of 1991 **** Bhuvneshwar Singh @ Bhanu Singh, son of Keshow Prasad Singh, resident of village Masharah, P.S. Udwantnagar, district Bojpur .. Appellant Versus The State of Bihar .. Respondent With Criminal Appeal (SJ) No. 273 of 1998 Baijnath Singh, son of late Ram Ekbal Singh, resident of village Masarh, P.S. Udwantnagar, district Bhojpur .. Appellant Versus The State of Bihar .. Respondent With Criminal Appeal (SJ) No. 249 of 1998 Yadu Singh @ Yaduvansh Singh, Yadu Singh @ Yaduvansh Singh, son of late Ram Sakal Singh, resident of village Masarh, P.S. Udwantnagar, district Bhojpur .. Appellant Versus The State of Bihar .. Respondent With Criminal Appeal (SJ) No. 242 of 1998 Suresh Singh, son of late Sheo Tawakal Singh, resident of village Masarh, P.S. Udwantnagar, district Bhojpur .. Appellant Versus The State of Bihar .. Respondent 2 With Criminal Appeal (SJ) No. 241 of 1998 Arjun Kumar Singh @ Arjun Singh, son of Bibhuti Prasad Singh, resident of village Masarh, P.S. Udwantnagar, district Bhojpur .. Appellant Versus The State of Bihar .. Respondent With Criminal Appeal (SJ) No. 239 of 1998 Ramnath Singh, son of Kuldeep Singh, resident of village Masarh, P.S. Udwantnagar, district Bhojpur .. Appellant Versus The State of Bihar .. Respondent With Criminal Appeal (SJ) No. 226 of 1998 Anjay Kr. Singh @ Datul Singh, son of Shri Mrithunjai Singh, resident of village Masarh, P.S. Udwantnagar, district Bhojpur .. Appellant Versus The State of Bihar .. Respondent With Criminal Appeal (SJ) No. 188 of 1998 Dhanjay Singh @ Dhananjay Singh, son of Sita Ram Singh, resident of village Masarh, P.S. Udwantnagar, district Bhojpur at Arra .. Appellant Versus The State of Bihar .. Respondent With Criminal Appeal (SJ) No. 264 of 1998 Birendar Singh @ Birendra Kumar Singh, son of Raghubir Singh, 3 resident of village Masarh, P.S. Udwantnagar, district Bhojpur .. Appellant Versus The State of Bihar .. Respondent With Criminal Appeal (SJ) No. 177 of 1998 Vinay Kumar Singh, son of late Ramashish Singh, resident of village Masarh, P.S. Udwantnagar, district Bhojpur at Arra .. Appellant Versus The State of Bihar .. Respondent **** Appearance : (in Cr. Appeals (S.J.) No. 183 and 273 of 1998) For the appellant .. Mr. Kanhaiya Prasad Singh, Sr. Adv. with M/S Sachidanand Singh & Smt. Jyotina Shankar, Advs. (in Cr. Appeal (S.J.) No. 226 of 1998) For the appellant .. Mr. G.P. Bimal, Adv. (in Cr. Appeal (S.J.) No. 239 of 1998) For the appellant .. Mr. T.N. Singh, Adv. (in Cr. Appeals (S.J.) No.188,249,242,241, 188,264 and177 of 1998 ) For the Appellant .. M/S N.A. Shamsi, S. Qaisar Hasan & E. Ehteshamuddin, (in all the cases) For the respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. All these ten appeals have been heard together and are 4 being disposed off by this common judgment as they arise out of the same impugned judgment, dated 12.05.1998, passed by Additional Sessions Judge, II, Arrah in N.D. P.S. Case No. 35 of 1991, by which the appellants have been convicted under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act and sentenced appellants, Bhuneshwar Singh @ Bhanu Singh (Cr. Appeal (S.J.) No. 183 of 1998) to undergo rigorous imprisonment for four years for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act with a fine of Rs.20,000/- and in default to pay the same, further to undergo rigorous imprisonment for six months, Baijnath Singh (Cr. Appeal (S.J.) No. 273 of 1998) sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.45,000/- and in default, further, to undergo rigorous imprisonment for three years, Yadu Singh @ Yaduvansh Singh (Cr. Appeal (S.J.) No. 249 of 1998) sentenced to undergo rigorous imprisonment for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act for five years with a five of Rs.40,000/- and in default of payment of fine, further, to undergo rigorous imprisonment for eighteen months, Suresh Singh (Cr. Appeal (S.J.) No. 242 of 1998) sentenced to undergo rigorous imprisonment for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act for four and half years with a fine of Rs.35,000/- and in default of payment of fine, further, to undergo rigorous imprisonment for one month, Arjun Kumar Singh @ Arjun Singh (Cr. Appeal (S.J.) No. 241 of 1998) sentenced to undergo 5 rigorous imprisonment for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act for four years with a fine of Rs.25,000/- and in default of payment of fine, further, to undergo rigorous imprisonment for eight months, Ramnath Singh (Cr. Appeal (S.J.) No. 239 of 1998) sentenced to undergo rigorous imprisonment for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act for four years and two years respectively with a fine of Rs.30,000/-, Anjay Kumar Singh @ Datul Singh (Cr. Appeal (S.J.) No. 226 of 1998 sentenced to undergo rigorous imprisonment for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act for five years with a fine of Rs.40,000/- and in default of payment of fine, further, to undergo rigorous imprisonment for eighteen months, Dhanjay Singh @ Dhananjay Singh (Cr. Appeal (S.J.) No. 188 of 1998) sentenced to undergo rigorous imprisonment for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act for four years with a fine of Rs.25,000/- and in default of payment of fine, further, to undergo rigorous imprisonment for eight months, Birendar Singh @ Birendar Kumar Singh (Cr. Appeal (S.J.) No. 264 of 1998) sentenced to undergo rigorous imprisonment for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act for three and half years with a fine of Rs.5,000/- and in default of payment of fine, further to undergo rigorous imprisonment for six months and Vinay Kumar Singh (Cr. 6 Appeal (S.J.) No. 177 of 1998) sentenced to undergo rigorous imprisonment for four years for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act with a fine of Rs.25,000/- and in default of payment of fine, further, to undergo rigorous imprisonment for eight months. 2. The prosecution case, as alleged, is that the informant, Nageshwar Prasad Gupta, In-Charge, Gajrajganj Out Post on 12.05.1991 at about 07.45 a.m. got a secret information that in village Masharah, Baijnath Singh, Yaduvansh Singh, Ramnath Singh, Bhuvneshwar @ Bhanu Singh, Anjay Singh @ Dantul Singh, Suresh Singh, Arjun Singh, Vinay Kumar Singh and Virendra Singh were involved in business of ganja. On the said information, the Officer-in- Charge, along with, Assistant Sub Inspector of Police, Bhola Naim and armed force of B.M.P. reached Arrah and informed the Deputy Superintendent of Police, Ajit Kumar Sinha, who constituted a raiding party and under the guidance of Deputy Superintendent of Police raided and searched the houses of the appellants one-by-one. During the search and seizure from the house of Baijnath, ganja in 7gunny bags weighing about 510 kgs. wrapped in plastics, in 12 begs kept in house of Yaduwansh Singh weighing 400 kgs, in 4 bags from the house of Ramnath Singh weighing 135 kgs., in a carton weighing 30 kgs. from the house of Bhuvneshwar Singh @ Bhuru Singh, wrapped in green coloured plastic weighing 20 and 30 kgs. from the joint house of Dhnanjy and Ajay Singh, sons of Sitaram Singh, in 9 bags, weighing 380 kgs., from the house of Anjay @ Dantul, in 5 black coloured plastic sheets, weighing 200 kgs., from the house of Suresh 7 Singh, in a bag covered in black plastic sheet, weighing 50 kgs., from the house of Arjun Singh, in bags, weighing 40, 10 and 50 kgs. respectively, from the house of Vinay Kumar Singh and in green coloured polythine, weighing 5 kgs., from the house of Virendra Singh were recovered and on demand no papers were produced nor any satisfactory explanation was given and accused, Anjay Singh, Vinay Kumar Singh, Dhananjay Singh, Ajay Singh, Arjun Singh, Birendra Singh and Bhuneshwar Singh were arrested. 3. On the fardbeyan the first information report lodged and investigation proceeded. After completion of the investigation the charge sheet submitted, cognizance taken and the trial proceeded. 4. During investigation, the ganja send for examination to excise expert was examined and the report received. The police, after investigation, submitted charge sheet, cognizance taken and consequently the trial proceeded after framing of the charges for offence under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 47(a) of the Excise Act against all the appellants. 5. Fourteen witnesses were examined during trial, who are P.W. 1, Indrashan Chaudhary, P.W. 2, Alhilendra Kumar Singh, P.W. 3, Arun Kumar Dwivedi, P.W. 4 Rabindra Nath Singh, P.W. 5, Ramesh Dubey, P.W. 6, Ajit Kumar Sinha, P.W. 7, Surendra Singh, P.W. 8, Sudhir Singh, P.W. 9, Sunil Kumar Mishra, P.W. 10, Amrendra Narain Singh, P.W. 11, Nageshwar Prasad Gupta, P.W. 12, Shiv Bhushan Prasad, P.W. 13, Baijnath Singh, and P.W. 14, Mukund Singh. 8 6. The documentary evidence proved are Exhibits 1 to 1/9 endorsement and signature of witnesses on the seizure list, Exhibits 2 to 2/9, seizure list, Exhibit 3 written report, Exhibit 4, formal first information report, Exhibit 5 is the report of the expert, Exhibit 6. 7. The trial Court, taking into consideration the evidence of the witnesses held that there was recovery of about 18 quintal and 10 kgs. of ganja and the seizure list prepared. The seized ganja was kept at Udwantnagar Police Station under P.W. 14, who had kept it in safe custody in room with key with him The sample of the ganja was taken from each and every packet and the report of expert, P.W. 12, was obtained who reported that it was ganja. 8. The investigating officer after his evidence in examination-in-chief on 03.07.1993 and 05.07.1993 did not turn up to depose, but, there is cogent and reasonable explanation of P.W. 14 for his non-appearance and, hence, the trial Court convicted the appellants and sentenced, accordingly, as mentioned above. 9. The learned counsel for the appellants, however, contends that the ganja alleged to have been seized from the houses of the appellants, but, the ganja after the seizure have not been dealt properly in accordance with law under Sections 52, 52A and 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985. In stead of sending the samples of the seized articles to the Chemical Analyst it has been sent to the Excise Inspector, P.W. 12, for formal report, without any chemical test, but, on mere smelling of the same. The procedure has not been adopted properly as provided under Sections 9 52, 52A and 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and, hence, the order of conviction and sentence, recorded by the lower Court, is not sustainable in law. 10. The learned counsel for the State, however, contends that the ganja was seized and the witnesses have supported the prosecution, hence, there is sufficient compliance of the procedure to maintain the conviction and, hence, on the respective submissions of the parties the question for consideration whether the prosecution has been able to prove the charges beyond reasonable doubts in accordance with law. 11. Out of fourteen witnesses, P.W. 11 is the informant- cum-investigating officer, who has supported the prosecution case that on secret information he proceeded to inform the Deputy Superintendent of Police, P.W. 6, under whose guidance a raiding party was constituted and raid conducted. The ganjas were seized from the houses of the appellants. On recovery of the ganja seizure list prepared and has proved the seizure list in his pen and signature, which has been marked as Exhibits 2 to 2/9. He got ganja examined by an expert, Excise Inspector, and got report of the same. He has proved the report in the writing and signature of Excise Inspector, Shiv Bhushan Prasad, P.W. 12. The report of the Excise Inspector has been marked as Exhibit 5. The requisition of the investigating officer for examination has been marked as Exhibit 6. 12. The investigating officer after his examination-in- chief on 03.07.1993 and 05.07.1993 did not turn up for cross examination hough steps taken for cross examination. P.W. 8 is 10 independent seizure list witness, who had proved his signature on the seizure list, Exhibit 2 series and his signature on seizure list marked as Exhibits 1 to 1/9. However, he has stated that nothing recovered from the houses of the accused persons before him. This witness has been declared hostile. P.W. 9 is another seizure list witness who has though proved his signature on the seizure list which has been marked as Exhibits 1/10 to 1/19 and has been declared hostile has not supported the seizure in his presence and claimed that his signature was taken on plain paper. P.W. 1 has supported the prosecution case regarding the search and seizure and preparation of the seizure list by P.W. 11, however, stated that he can not say any specific mark was put on the seized articles or not. In cross examination though he has stated that the seized article was brought by him to Arrah and, again, from Arrah it was sent to Udwantnagar Malkhana though he claimed that the seized articles were weighed and was present during all steps of the making the seizure. P.W. 2 is only a witness to the seizure in the house of Baijnath Singh and he remained there though have stated that the seized ganja was sent for chemical examination. P.W. 3 is tender. P.W. 4 has stated that he is unable to say about the weight of seized ganja and do not claim to identify the accused persons. P.W. 5 has stated that he filed supplementary charge sheet in this case. P.W. 6 has come to depose that the search was made from the house of the appellants and the ganja was recovered and claimed to identify the accused in dock and the accused, who were not present and represented by their Advocates. However, in cross examination he has stated that the ganja was kept in gunny bags and was sealed, 11 however, stated that he has not signed on the said ganja though claimed that the sample of the seized ganja was sent for chemical examination. P.W. 7 has stated that the raiding party reached Masharah village with two independent witnesses, P.Ws. 8 and 9, and the ganja was recovered. However, he did not claim to have identified the accused persons and in cross examination has stated that he was amongst the persons who had surrounded the village at the time of recovery and has stated that the accused arrested were brought to Gajrajganj Out Post and the ganja was taken to Muffasil Police Station. P.Ws. 8 and 9 the independent witnesses turned hostile though proved their signatures on seizure list, but, stated that the article not seized before them. P.W. 10 is tender. P.W. 12 is the Excise Inspector, who has stated that on examination he found that a rticle for examination was ganja and proved his report, marked as Exhibit 5. This report, Exhibit 5, mentioned that he identified by smelling. However, in cross examination, he has stated that he did not examine ganja or any specific mixture. P.W. 13 is tender. P.W. 14 is Mukund Kumar Singh. He in his evidence in examination-in-chief supported the prosecution case that he was member of the raiding party and the village was raided and the ganja was recovered from the houses of the appellants and Nageshear Prasad Gupta, P.W. 11, seized the ganja in presence of the witnesses and prepared the seizure list and, thereafter, he prepared the report and the first information report was lodged in the Police Station. He has proved the formal first information report at Udwantnagar Police Station prepared by Assistant Sub Inspector of Police, which has been marked as Exhibit 4 12 and identified Ramnath Singh and Yaddu Singh present in dock and claimed to identify the other accused persons who were present at the time of occurrence. However, in his cross examination he stated that he did not search any house nor ganja was recovered in his presence. A direction was issued to produce the seized ganja in Court. By order, dated 02.01.1997, it was ordered on the request of the Assistant Public Prosecutor to send a summon to the Assistant Sub Inspector of Police, Mukund Singh to be present with the material Exhibits as well as to depose and on 18.01.1997 this witness was, again, examined and he in his evidence has stated that 18 quintals of ganja was seized and said seized ganja was kept in Udwantnagar Police Station by the order of the then Superintendent of Police. He has stated that 12 to 14 kgs. ganja was kept as a sample for Exhibit and has stated that this is the ganja sample which is being presented in Court and has been marked as material Exhibit 1. He has stated that the rest of the seized ganja is sealed and lying in a room of Udwantnagar Police Station. However, he has stated that he is neither the informant nor the investigating officer of the case and has got only one copy of the seizure list of the seized ganja. After the seizure the investigating officer did not keep the seized ganja in his possession, but was kept in the possession of P.W. 14. He has, further, stated that the investigating officer did not demand the seized ganja. He did not inform the Court that the seized ganja in his custody and has stated that the seized ganja is kept in a room in Udwantnagar Police Station and the key of the said lock is in his custody and there are two keys of that room in which ganja was kept. He has, further, stated that he has opened the lock for taking the 13 sample as material Exhibit and there is no witness of unsealing or sealing of the lock. He has, further stated that he was transferred in October, 1991, from Udwantnagar Police Station and, thereafter, he went to Udwantnagar Police Station to see that whether the lock is sealed or not. However, he has stated that the seized ganja was kept separately in bundles as per the seizure. However, further, stated that the rats has got eaten the bundles of ganja. He has, further, stated that in process of sending the sample to Forensic Science Laboratory the samples were taken from each bundles, but, he could not say that how much amount of the articles were taken at that time the investigating officer was not there. 13. However, there is evidence that the ganjas were seized from the houses of the appellants, same was sent for examination before Excise Inspector and he reported by smelling that the article sent for examination of ganja and P.W. 14, the Officer-in- Charge of Udwantnagar Police Station stated tht he kept the ganja in a room under his lock and key. Hence question is whether it is sufficient compliance of the Narcotic Drugs and Psychotropic Substances Act, 1985, to record conviction. 14. It is relevant to quote the procedure dealing with the seized ganja as ingredient, Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985, is reproduced below : 52A : Disposal of narcotic drugs and psychotropic substances --- (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any 14 other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as the Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drug or psychotropic substances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepared an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of pacing, marks, numbers or such other identifying particulars of the narcotic drugs of psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application to any Magistrate for the purpose of --- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs are true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub- section (2), the Magistrate shall, as soon as may be, allow 15 the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1074), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence. 15. Hence, Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985, mandates that as soon as the article seized and delivered into the custody of Officer-in-Charge of the Police Station or to the Officer empowered under Section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985, he is required to make an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, mode of packing method, number or such identifying particulars of narcotic drugs packing in which they are packed, country of origin and other particulars. He is required to make an application to any Magistrate for certifying the correctness of inventory and taking the photograph of such drugs and certifying photograph and to draw respective sample of drugs in presence of Magistrate and Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985, provides a rule of evidence that the inventory prepared and photograph are proving evidence in respect of evidence. Hence, Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985, provides the procedure to deal with seized 16 article as well as rule of evidence treating it as primary evidence. Hence, non-compliance has completely deny the primary evidence and create doubt that the seized articles were the article which have actually been seized and has not been substituted by other articles. 16. However, the requirements of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985, and has not been complied with. However, it is, further, relevant to quote Section 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which is 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,