CRIMINAL APPEAL No.1048 OF 2007 Against the judgment and order of conviction and sentence dated 8.10.2007, passed by Sri Brajendra Kumar Srivastava, Addl.Sessions Judge, IX, Patna in Special Case No.1/2002. ----- 1. MALKIT SINGH , son of Late Gurdayal Singh, R/o 153/1, B.P.Lane, P.S.Baranagar, Kolkata (W.B.) . 2. MD ABBAS, son of Late Md. Siddique, R/o Vll-Naya Bazar, Tola- Manmath, Hassanpur, Dist-Samastipur ….Appellants Versus STATE OF BIHAR ….Respondent For the Appellants :Mr. Surya Prakash Singh,Advocate For the State :Mr.S.Azeem, APP ------ P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL *** K.K.Mandal,J Challenge in this appeal is to the judgment and order dated 8.10.2007, passed in Special Case No.01/2002 by the learned Addl. District Sessions Judge IX, Patna, whereby both the appellants have been convicted for offences under sections 20 (b) and 25 of the Narcotics Drugs and Psychotropic Substances Act,1985 (hereinafter to be referred to as the “NDPS Act”) and have been awarded sentence to undergo R.I. for ten years and a fine of Rs.1,00000/- and in case of default thereof to further undergo S.I. for one year under section 20(b) (ii) (c). The same punishment has been awarded for the offences under section 25 of the NDPS Act. The sentences have been directed to run concurrently. - 2 - 2. Background facts, in a nutshell, are as under: On 30.12.2001, The Directorate of Revenue Intelligence (DRI) Patna seems to have received a secret information regarding clandestine transportation and carriage of 959 kgs. of narcotics drugs (Ganja) in a tanker. The complainant (PW1) constituted a raiding team consisting of PWs. 2 to 7 and proceeded to Dobhi(a place close to Gaya) and reached there the same day. At about 7 o‟ clock in the evening, the complainant noticed an oil tanker bearing registration no.W.B.-25-6152 coming from Calcutta side. The vehicle was signalled to stop. One person, who was in the tanker, got down and managed to run away. The present appellants being the driver and the Khalasi of the said oil tanker were apprehended by the raiding team. The accused(s)/ appellants initially feigned ignorance but subsequently they admitted the contraband goods/substance were being carried in the vehicle. Thereafter, an inspection/examination was carried out which confirmed the packets of Ganja kept secretly inside the oil chamber of the vehicle in question. The raiding team, consisting of DRI officials, secured two independent witnesses in the shape of Sudhir Kumar and Raju Prasad . Thereafter, the oil tanker along with the independent witnesses and the appellants were driven to DRI office at Patna for effecting seizure. In the morning of 31.12.2001 a search of the vehicle was carried out in presence of two independent witnesses and in course whereof 69 packets of Ganja in various sizes weighing about 959 kgs. valued at Rs.19,18,000/- was/were recovered from - 3 - the chamber of the said oil tanker under a seizure list (Ext.2) and a Panchnama was also prepared (Ext.4). The weighment chart respecting those contraband substance so recovered from the tanker is on record as Ext.3. On further search, a cash amounting to Rs.1900/- is also said to have been recovered from the driver‟s cabin besides some documents relating to the Vehicle. In course of enquiry, the appellants are said to have made statements in presence of the two independent witnesses which was/were signed by the independent witnesses and contained the thumb impression of the appellants. Those statements of appellants 1 and 2 are on record as Ext.1 and 1/1 respectively. It seems in their such statements they confessed about their knowledge that they were carrying the contraband substance in a clandestine manner. On concluding preliminary enquiry in the manner noticed above, the complainant namely Deepak Kumar (PW1) filed a complaint (Ext.6) against the present appellants. It further appears that four representative samples were drawn from the seized contraband substance(ganja) and one of them was sent to Government Opium and Alkaloid Works, Gazipur (UP) for chemical analysis. The report was received on 7.2.2002 (Ext.5). The learned court below took cognizance of the matter as the case was subsequently transferred to the file of the present trial Judge for trial and disposal. The charges were thereafter framed and read over to which the appellants pleaded not guilty and claimed to be tried. As the accuseds (appellants) had abjured their guilt and pleaded false implication the prosecution, in order to prove - 4 - the charge(s), got examined as many as seven witnesses, besides bringing on record certain documents which shall be taken note of at an appropriate stage. 3. This is to be recorded that in the present case all the witnesses, i.e., PWs. 1 to 7 are the personnels and staff of DRI Patna who claimed to be the members of the raiding team. Two independent witnesses have been cited at different places but they have not been produced in court. In this regard, the observation of the learned trial court deserves to be noticed which is as under: “So far as the non-examination of two independent witnesses is concerned it is that they have not been produced and examined. Though the prosecution availed the opportunity therefor.” 4. PW1 is the complainant. According to this witness, on 30.12.2001 he received a confidential information about the carriage/transportation of contraband substance through G.T. Road and thereafter he constituted a raiding team (consisting of prosecution witnesses), proceeded to and reached Dobhi(Gaya) around evening time. At 7 o‟ clock in the evening, he noticed the vehicle(oil tanker) bearing registration no.W.B- 25- 6152 coming from Calcutta side. The vehicle was signalled to stop but it did not stop whereafter the vehicle was intercepted after a hot chase. One accused jumped from the vehicle and managed to escape. The two appellants were found sitting in the driver‟s chamber and were arrested. On questioning, they admitted that the tanker contained contraband substance. A crowd had emerged around the oil tanker - 5 - from which two independent witnesses were drawn and in their presence the head of the tanker was opened only to find that it did contain packets. With the consent of the appellants, the vehicle along with two witnesses and the appellants were brought to Patna office at about 10 o‟ clock in the night and in the following morning a thorough search was carried out in presence of both the independent witnesses and 69 packets of contraband Ganja weighing 959 kgs. were recovered from the cavity of the tanker. Certain other articles were also recovered and seized from the vehicle. Thereafter, statements of the accuseds (appellants) were recorded in which they admitted about the presence of the contraband substance in the vehicle being carried and transported in a clandestine manner. In paragraph 9, this witness has stated that the statements of the appellants were recorded by one Sudhir Kumar and the same was read out to appellant no.1 whereafter he put his thumb impression. Another independent witness, namely, Raju Prasad also put his signature thereon. Similarly, the statement of another appellant, namely, Md. Abbas was also recorded. This witness also signed those statements (Exts.1 & 1/1). In paragraph 11, this witness has candidly stated that the seizure list (Ext.2) and the weighment chart (Ext.3) was/were prepared by him and copies whereof were given to the appellants after obtaining their signature/LTIs. Paragraph 12 indicates that from the seized 69 packets of contraband ganja four samples were drawn for chemical analysis. The report of the analyst/examiner is already on record as - 6 - Ext.5. 5. P.W.2, B.P.Sinha is another Inspector of DRI. He was also one of the members of the raiding team. According to him, on 30.12.2001, on getting certain secret information, a team of officials was constituted which proceeded to Dobhi (Gaya) and as per the information they noticed the vehicle coming from Calcutta side at about 7 o‟clock in the evening. The vehicle was intercepted and the appellants were arrested. In course of preliminary enquiry, they accepted about the presence of contraband substance in the vehicle/tanker. Two witnesses were drawn from the crowd that had assembled and the preliminary enquiry was made in their presence in which it was found that the tanker did contain Ganja. Thereafter, the vehicle along with the appellants and two independent witnesses were brought to Patna and on the following day the process of search and seizure was carried out in which 959 kgs. of Ganja were recovered wrapped in polythene bags. A Panchnama was prepared respecting the entire process and a seizure list was thereafter prepared which contained the signatures of the appellants as well as the independent witnesses. In paragraph 4 of his evidence he discloses that subsequently four representative samples were drawn from the seized Ganja which was/were sent for chemical analysis/examination. In paragraph 11 he accepted that two independent witnesses who were drawn at Dobhi (Gaya) are not deposing in the present case. In paragraph 16, this witness in an unequivocal terms states that samples were drawn in four packets - 7 - each containing 10 gms. of „Ganja‟ and thereafter the same was/were sealed and signatures of the appellants and the independent witnesses were obtained thereon. In the following paragraph, this witness states that the representative samples together with other seized articles were kept at C.W.C. godown of the department at Musallahpur Hat and subsequently sent for chemical examination on 4.1.2002.. 6. P.W.3 Rajesh Kumar Srivastava is another Officer of DRI, Patna, who, during the relevant time, was a member of the raiding team. According to him, on getting confidential information, a raiding team consisting of different prosecution witnesses was constituted on 30.12.2001. The raiding team proceeded to Dobhi (Gaya) and reached there. At about 7 o‟clock in the evening an oil tanker was noticed coming from Calcutta side which was intercepted and the appellants were arrested. In the preliminary enquiry, they accepted their guilt that they were carrying contraband substance in the cavity of the said tanker. At the Patna office of DRI, in presence of independent witnesses and the appellants search was carried out and from the chamber of the tanker 69 packets of Ganja wrapped in polythene bags were recovered which grossed at 959 Kgs. which was/were duly seized by P.W.2 B.P.Sinha after obtaining the signatures of the appellants. According to him, the appellants confessed their guilt. In paragraph 3 he says that on the seizure list signatures/LTIs. of both the appellant were obtained. In paragraph 8 of his deposition he admits that there is no - 8 - document on record to show that in fact the raiding team was constituted before proceeding to Dobhi on the basis of confidential information so received by the DRI office at Patna. He further asserts that all the members of the raiding team boarded one jeep and thereafter proceeded to Dobhi situated in the district of Gaya. They covered the said destination upto Dobhi Mor via Aurangabad and Ara. 7. P.W.4 is another personnel posted during the relevant time in DRI office at Muzaffarpur. According to him, on the basis of a confidential information received on 30.12.2001 he became part of the raiding team and went to Dobhi Mor where a tanker bearing no.W.B-25-6152 was signaled to stop and thereafter the occupants, i.e., the appellants were arrested and interrogated. After initial hiccup, they admitted about the presence of contraband substance kept in the chamber of the oil tanker. According to him, a search was carried out at the said place in which altogether 69 packets of Ganja weighing 959 kgs. was/were recovered and a seizure memo (Ext.2) was drawn by P.W.1 (I.O.). Thereafter, a Panchnama was prepared in presence of two independent witnesses, namely, Raju Prasad and Sudhir Kumar and their signatures on those documents were obtained. This witness has proved their signatures as Exts.4/1 and 4/2. he has also proved the signature of P.W.1 (complaint-cum- I.O.) as Ext.4/3. According to him, immediately thereafter the statements of the appellants were recorded which was reduced to writing by one Sudhir Kumar(one of the independent witnesses) and - 9 - LTIs. of the appellants were obtained on each page of the statements. The statements so recorded under section 67 of the NDPS Act also contained signature of P.W.1(complainant) 8. P.W. 5 is another DRI personnel, who during the relevant time, was posted at Patna. He is the driver of the vehicle which is said to have been used by the raiding team in order to reach Dobhi Mor. According to him, on the relevant date, they proceeded to Dobhi Mor and a tanker was stopped on the G.T.Road and the occupants (appellants) were taken into custody and thereafter a search was made, in course whereof 959 kgs. of Ganja were recovered from the cavity of the tanker wrapped in polythene bags/packets. According to him, a crowd had surged around the place of occurrence from which two independent witnesses were drawn in the shape of Sudhir Kumar and Raju Prasad and thereafter all of them were carried to Patna in order to complete the formality. In paragraph 3, this witness, who is the driver of the vehicle has categorically stated that they negotiated the distance from Patna to Dobhi Mor through Jehanabad/Gaya route. This is to be highlighted here that this is altogether different and distinct route from what has been deposed by P.W.3. 9. P.W.6 is a sepoy in DRI office at Patna. He too during the relevant time was a member of the raiding team. According to him, on the relevant date, the team proceeded to Dobhi Mor and intercepted a tanker which contained Ganja. The appellants were found occupying the tanker and were arrested and brought to DRI - 10 - office at Patna where in course of search and seizure 959 Kgs. of Ganja were recovered from the cavity of the tanker. This witness has also stated that they covered the distance of Dobhi Mor through Gaya. 10. P.W.7 is another witness, who during the relevant time, was posted as Hawaldar in DRI office, Patna. He made somewhat identical statement. 11. Counsel for the appellants assailed the impugned judgment rendered by the trial court on several counts. According to him, there are serious lacunae in the prosecution case which render the judgment and order of conviction unsustainable in law. He made elaborate submissions in this regard which shall be taken note of hereinafter. On the contrary, learned counsel appearing on behalf of the State, supported the judgment and order. According to the learned APP, the prosecution has been able to prove their case beyond shadow of reasonable doubts. 12. Counsel for the appellants, referring to the evidence on record and different provisions contained in NDPS Act criticized the judgment. Before I proceed to deal with the arguments, this Court considers it appropriate to remind itself of the findings recorded by the learned trial court that in spite of adequate chance afforded to the prosecution, the independent witnesses to the search & seizure, panchnama and the samples drawn therefrom have not been examined in this case to prove/support the prosecution case. 13. Counsel for the appellants draws attention of the - 11 - Court to the provisions as contained in section 51 of the NDPS Act and section 100 of the Code of Criminal procedure. Relevant part of those provision are as under: Section 51 of the NDPS Act reads as under: 51. “Provisions of the Code of Criminal Procedure,1973 to apply to warrant, arrest, searches and seizures.- The provisions of the Code of Criminal Procedure,1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act.” Relevant part of section 100 of Cr.P.C. reads as follows: 100 (1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) “Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitants of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.” (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.” (6) xxx xxx xxx (7) xxx xxx xxx (8) xxx xxx xxx 14. It has been submitted that as per the provisions contained under the Acts, referred to above, it is/was the bounden - 12 - duty of the appellants to secure not only the independent witnesses but also the respectable witnesses belonging to the place where actual seizure/search was made/carried out. This is a safeguard which has been provided under the provisions of the Act in order to lend assurance to the Court that in fact search and seizure were made/effected in the manner alleged/stated by the prosecution. Admittedly, the two independent witnesses in the shape of Sudhir Kumar and Raju Prasad, who are witnesses not only to the seizure of the packets (Ext.2), but also to the Panchnama(Ext.4) which is/are said to have been drawn by the prosecution in order to demonstrate that on the date of alleged occurrence the seizures were effected from the vehicle in possession of the appellants in the manner alleged by the prosecution have not been examined. Learned counsel refers to and relies upon a few decisions of the Hon‟ble Apex Court in order to substantiate his submission on this count. Those decisions are: (i) (2002) 1 SCC 606 (Bahadur Singh Vs. State of Madhya Pradesh) Para 3 and 8. (ii) AIR 2004 SC 4324 (State of West Bengal Vs.Babu Chakraborty) Para 17. The facts of the case in Bahadur Singh Vs. State of Madhya Pradesh and Anr. (supra) can be seen from paragraph 3 of the judgment which reads thus: “According to the prosecution there were two independent witnesses in whose presence the poppy straw was recovered and seized. The prosecution, however, examined only one of them, namely, Pawan Kumar Sharma, P.W.1 did not - 13 - support the prosecution and was declared hostile. He, though admitted his signatures as a panch witness to the documents, but denied that in his presence 3,900 kg of poppy straw was recovered and seized from the driver, Bahadur Singh and cleaner, Amreek Singh. The conviction was, however, based on the sole testimony of the Investigating Officer, Head Constable Gontiya, PW3.” In paragraph 8 of the report the Apex Court held as under: “Under the aforesaid circumstances the appellant cannot be convicted on the sole testimony of police witness, PW3. the question of applicability of Section 35 of the Act will not arise in the present case when the recovery itself is doubtful. The appellant had disputed the recovery of contraband. There are serious discrepancies in its recovery, seizure and deposit in the malkhana. The prosecution has thus failed to prove its case beyond all reasonable doubts against the appellant who is accordingly entitled to benefit of doubt.” 15. In the case of State of West Bengal Vs. Babu Chakraborty (supra) the accused was found in possession of 123 packets of heroine kept in 13 polythene packets which were allegedly seized under the seizure list in presence of the two independent witnesses. On the basis of evidence brought in support of the case, the learned trial court convicted the accused. On appeal, a Division Bench of the High Court quashed and set aside the judgment. The State went in appeal before the Supreme Court. Referring to several decisions of the Supreme Court, it was found and held that in case where mandatory provisions are not complied with and where independent witnesses are not examined, the accused would be entitled to be acquitted and that any seizure in violation of the mandatory provisions would be inadmissible. In paragraph 27 of - 14 - the said report, the Hon‟ble Supreme Court finally concluded that where mandatory provisions are not complied with and where independent witnesses are not examined, the accused would be entitled to be acquitted of the charges and that any seizure in violation of the mandatory provisions would be inadmissible since these provisions are in the nature of statutory safeguard. 16. Counsel for the appellants apart from highlighting the apparent inconsistencies in evidence with regard to the route adopted by the raiding team which this Court has already taken note of, submitted that there is/are material inconsistency in respect of manner in which tanker was intercepted. P.W1(I.O.) at paragraph 2 of his deposition has stated that the vehicle on being signalled did not stop. They had to chase and overtake the vehicle in order to bring it to a halt. On the contrary, the driver of the vehicle (PW5) deposed to the effect that the tanker had stopped no sooner the signal to stop was given. He did not state about the chase being offered in order to bring the vehicle to a stop. According to the counsel for the appellants, if the evidence of PW1 is to be believed, then this witness (PW5) was the most competent witness being the driver of the vehicle to say/support the said statement of PW1 which is not the case. He then referred to the deposition of PW4 at paragraph 6 where this witness appears to have stated that on signal to stop the tanker did not stop and sped away. The raiding team had to offer a chase which continued upto 1-1 ½ kms. and thereafter they could intercept the truck/tanker and bring it to halt. - 15 - Per learned counsel, the sharp discrepancies in the evidence with regard to the route which actually they adopted in order to reach Dobhi as also the manner in which the tanker was made to stop creates a serious doubt. Learned counsel for the appellants thereafter submits that there is no evidence on record to indicate that samples so drawn from the seized articles/substance did contain signatures of the appellants. Referring to the deposition (examination-in-chief) of the witnesses, it has been submitted that none of the witnesses has stated categorically that samples so drawn and seized in four packets contained signatures/LTIs. of the appellants. To buttress his submission, he referred to the evidence of PW1 (I.O.) and PW2. PW2 in paragraph 4 has only stated that samples were drawn in presence of the witnesses and the accused appellants and thereafter the same were sealed. The memo of drawing samples is not brought on record. Counsel for the appellants further submits that a serious doubt is thus created as to whether those samples were actually drawn from the seizures of packet (s) so effected from the tanker. He reiterates his submission that the documents available on record in the shape of Exts.2 and 4 contain signatures of those two independent witnesses. As noticed above, those witnesses have not been produced in Court and there is absolutely no explanation with regard to their non-examination in the present case. Counsel for the appellant has gone to the extent of submitting that details of these independent witnesses would indicate that they were not independent and respectable witnesses of - 16 - the locality. As per the details of these witnesses appearing on the Panchnama (Ext.4), they are/were the residents of Mohania Road and Main Road Gaya. They thus cannot be said to be local witnesses. Referring to the evidence of PW2 in para 16 he has submitted that a positive case of the prosecution is that