CRIMINAL APPEAL No.556 OF 2009 **** **** Against the judgment and order dated 1.6.2009 and 8.6.2009 passed in Banka P.S. Case No. 291 of 2005 ( G.R. case No. 1055/2005) passed by Sri Sunil Kumar Srivastava, Ist. Additional Sessions Judge, Banka; SHANKAR SAHNI------------------------------------------------Appellant Versus THE STATE OF BIHAR-----------------------------------------Respondents With CR. APP (DB) No.566 of 2009 1. BIJOY KUMAR MANDAL @ VIJAY KUMAR MANDAL 2. RANJAN KUMAR DAS------------------------------Appellants Versus STATE OF BIHAR---------------------------------------------Respondents With CR. APP (DB) No.596 of 2010 BIKRAMA MANJHI-----------------------------------------------Appellant Versus STATE OF BIHAR---------------------------------------------Respondents with CR. APP (DB) No.648 of 2009 RAJESH KUMAR SINGH-------------------------------------------Appellant Versus STATE OF BIHAR---------------------------------------------Respondents With CR. APP (DB) No.665 of 2009 1. JAI PRAKASH MANDAL 2. ANMOL PASWAN Appellants Versus STATE OF BIHAR---------------------------------------------Respondents With CR. APP (DB) No.709 of 2009 MD. IMRAN----------------------------------------------------Appellant Versus STATE OF BIHAR---------------------------------------------Respondents With CR. APP (DB) No.710 of 2009 1. MUKESH KUMAR JHA 2. SUMAN KUMAR SINGH 3. RAJENDRA DAS 4. KUMOD MANDAL Appellants Versus STATE OF BIHAR---------------------------------------------Respondents --------- For the Appellants:- Mr. Rana Pratap Singh, Ranjan Kr. Jha & Mr. Kumar Kamal Nayan,Advocates 2 For the State:- Mr. Ashwani Kumar Sinha, P.P. P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE JUSTICE SHRIDHARNIDHAR JHA Mridula Mishra,J- All appellants were charged under sections 414,149 of the Indian Penal Code, under section 21(b) of Narcotic Drugs and Psychotropic Substance Act, 1985, section 25 (1-A), 25 (1-AA), 25 (1- B) A, 26(i) and 35 of the Arms Act and also under Section 25(2) of the Antiquities Art Treasure Act, 1972. The appellants have been convicted by the judgment and order dated 01.06.2009/08.06.2009 respectively passed by the First Additional Sessions Judge, Banka in Banka P.S. case No. 291 of 2005 (G.R. case No. 1055 of 2005) and have been sentenced to undergo Rigorous imprisonment for two years for conviction under Sections 414, 149 of the Indian Penal Code, R. I for ten years and fine of Rs. 1, 00000/- and in default of payment of fine R. I. for two years for conviction under section 21(b) of the N.D.P.S. Act. The appellants have further been sentenced R.I. for ten years and fine of Rs.5, 000/-, in default of payment of fine R.I. for one year for conviction under Section 25 (1-A) read with section 35 of the Arms Act. They have also been sentenced R.I. for life and fine of Rs.10,000/-, in default of payment of fine R.I. for one year for conviction under Section 25 (1-A A) read with Section 35 of the Arms Act and for their conviction under Section 25 (1-B) A, read with section 35 of the Arms Act R. I. for 3 three years and fine of Rs.5,000/- in default of payment of fine R.I. for six months. The appellants have also been sentenced to undergo R.I. for seven years each and fine of Rs.5,000/-, in default of payment of fine R.I. for six months for their conviction under Section 25(2) of the Antiquities Art and Treasure Act, 1972. The appellants have preferred these appeals against the judgment of conviction and order of sentence passed by the trial Court. Shri D.K.Sinha, Officer In-charge of Banka Police Station was informed on Telephone by the Superintendent of Police, Banka at about 12.30 A.M. on 13.9.2005, since he received secret information that a gang of smugglers is traveling by road, through Katoria and going to Deoghar with huge amount of ancient antiquities, arms, ammunitions and Heroin. These articles, they are carrying from Bhagalpur to Calcutta, which will be handed over to the International gang of smugglers. The Officer In-charge of Banka P.S. was informed by the Superintendent of Police that the gang of smuggler can pass through Katoria road at any time in the night, as such an action is needed to be taken to apprehend them and for that a raiding party be formed under the leadership of Sub-Divisional Police Officer, Banka. Sri D.K.Sinha, Officer In-charge of Banka P.S. (P.W.8) made a station diary entry and proceeded from the police station with constable No. 156 (Driver) towards the residence of Sub Divisional Police Officer, where Officer 4 In-charge of Barahat P.S. Raj Kishore Singh ( P.W.10), Security Guards of the Superintendent of Police, Banka, Constable No. 39 Satyendra Kumar Yadav (P.W.5), Constable No. 74 Dipak Kumar (P.W.6), Constable No. 62 Abinash Kumar Jha (P.W.7) and Constable No. 336 Sajan Kumar ( P.W.9) also came. The raiding party headed by Baliram Kumar Choudhary, Sub Divisional Police Officer ( not examined) proceeded at 1.30 A.M. and reached near a pulia situated half kilometers away from village Kakwara. The Police party started checking the vehicles passing through that road and at about 3 A.M. a Tata Indica Car bearing registration No. WB-02J-9829 came there, which was asked to stop. The car stopped but the passengers sitting inside the car tried to flee away, they were chased and apprehended by the police party. All six persons sitting inside the vehicles were apprehended and on interrogation disclosed their names. They were Kumod Mandal, Lallan Kumar Mandal, Mukesh Kumar Jha, Suman Kumar Singh, Rajendra Das and Md. Imran. Mukhiya of village Kakwara, Upendra Narain Singh (not examined) along with some villagers also came there and in presence of two witnesses, namely, Upendra Narayan Singh (P.W.1) and Rana Kumar Singh ( P.W.2) search was made but nothing was recovered from their possession. When the Dikky of the Car was searched, from there following articles were found:- 5 (i) a leather bag fully sealed with Heroin, on which DOUBLE TIGER, HEROIN MADE IN THAILAND, 100% POISON, SPECIAL NO.1 NET WEIGHT 1 POUND, Mag. 4.4.2005, Exp.4.4.2007 (ii) A country made carbine, whole made of iron and on the body of which AUTOMATIC BLAST KARBIAN written and on the magazine base MADE IN CHINA, written. (iii) Country made Carbine, whole made of Iron. (iv) Magazine of country made carbine-four. (v) Magazin of country made carbine-two (vi) One stand of country made carbine made of iron. (vii) One country made pistol of.32 bore made of iron, half automatic control, fitted with fiber butt and on the left side of the body PITR & BRATTA, MADE IN ITALAY, written and in the right side AUTOMATIC PISTOL 9 round, mentioned on the barrel STATE PROPRIETY OF THE ITALY Government, written and no. 7273 mentioned on the magazine. (viii) A country made 9 m.m. half automatic pistol, on which Automatic Pistol, MADE IN ITALAY NO.2200 and HAVEN CONN,9 mm, 9 round mentioned and no. of Magazine mentioned as 7700. (ix) One magazine of pistol of 9 mm. made of iron on 6 which Magazine No. 7700 mentioned. (x) One magazine of pistol made of iron on which 7273 is mentioned (.32 bore) Since the passengers traveling in Indica Car did not give any satisfactory answer regarding the ownership and possession of those recovered articles, as such a seizure list was prepared. On the seizure list the signature of accused persons and independent witnesses ( P.W.1 and P.W.2) were taken. The apprehended passengers also disclosed during interrogation that their other counter-parts have come to Banka from a passenger vehicle with seven ancient idols of goddess and god, who are at present waiting at Katoria ( Banka) Bus stand and they will proceed to Deoghar by Bus in the early morning. On the basis of this confession the Officer In-charge of Banka P.s. along with the police party proceeded for Katoria Bus stand (Banka) and reached there at 4.30 A.M. In the middle of the bus stand six persons were found waiting with two bags. These six persons also tried to run away, seeing the police party but they were apprehended with the help of armed force. The apprehended persons disclosed their names as Bojy Kumar Mandal, Ranjan Kumar Das, Anmol Paswan, Jai Prakash Mandal, Shankar Sahni and Rajesh Kumar Singh. The apprehended persons from the Bus stand were also identified by the persons who were earlier apprehended traveling in Indica Car. Nothing was recovered from the possession of 7 persons apprehended at bus stand, but while searching two bags, antique idols of goddess Sita and one antique idol of Bhagwan Ram fully made of Metal and an ancient idol of Pujari fully, made of metal, one ancient idol made fully of metal of a person sitting with folded hands, one ancient idol of yellow colour and one black engraved stone old picture of Bhagwan Budha including two figures of disciples and below the said picture of five ladies and on the back side of the idol something engraved in ancient language were recovered. Here also a seizure list was prepared in presence of two independent witnesses Manikant Choudhary (P.W.3) and Raj Kumar Choudhary (P.W.4), which was signed by the apprehended accused persons and the copy of the seizure list was handed over to them. All accused persons were arrested. The arrested accused persons disclosed that in their business of Smuggling of antique idol, one Sanjoy Kumar Mandal, Promod Kumar Singh and D.K. alias Daniel are also involved. They disclosed that five other persons who are also presently at Bhagalpur and are members of the gang, their names are not known to them. The of Officer In-charge (P.W.8) himself recorded his fardbeyan at the place of occurrence itself on 13.9.2005 at about 5.45 A.M. in the morning and formal First Information Report was instituted on that date at 10 A.M. The First Information Report was instituted for offence under Sections 414, 149 IPC, Section 25 (1) (b)/25(1-A)/25(1- 8 AA)/25(1B)/26/35 of the Arms Act, U/s 21(2) of the N.D.P.S. Act and under section 25(1) (2) of the Antiquities and Art Treasure Act against fifteen accused persons. One of the accused D.K. alias Daniel remained absconding, as such on submission of the charge-sheet, though cognizance was taken against all 15 accused persons but only 14 accused persons faced trial. Out of 14 accused persons, Accused no. 13 Pramod Kumar Singh and Accused 14 Sanjoy Kumar Mandal were acquitted by the trial Court. The prosecution examined 13 witnesses to prove the charges framed against the accused persons. P.W. 1 Upendra Narain Singh P.W.2, Raj Kumar Singh, P.W.3, Mani Kant Choudhary and P.W.4 Raj Kumar Choudhary were seizure list witnesses. None of them supported the case of prosecution regarding seizure of prohibited arms, heroine and antique idols in their presence. Though, they identified their signature on the seizure list but they deposed that it was taken on the plain-sheet of the paper and no seizure was made in their presence. Accordingly, these four witnesses were declared hostile. In this way, there is no evidence regarding seizure of prohibited arms, ammunitions, heroine and antique idols in presence of independent seizure list witnesses. The Informant D.K.Sinha, has been examined as P.W.8. He has supported the case of prosecution regarding the information given to 9 him by the Superintendent of Police, Banka, making entry into the station diary as station Diary No. 236 (Ext.4) and as per direction of the Superintendent of Police, Banka, he proceeded to the residence of SDPO, Baban Mahto. The members of the raiding party were Raj Kishore Singh,Officer In-charge, Barahat (P.W.10) and other members were Satendra Kumar Yadav P.W.5, Dipak Kumar P.W.6, Abinash Kumar Jha P.W.7 and Sajjan Kumar P.W.9, all constables and working as guards at the residence of Superintendent of Police, Banka. The driver Sanajy Kumar Singh also accompanied them but he was not examined as witness. P.W.8 has also deposed on the point of search of Tata Indica Vehicle and seizure of prohibited arms as well Heroine kept in the bag as well as preparation of a seizure list in presence of the seizure list witnesses. However, from the deposition of P.W.8 there is nothing to show that while seizure of Heroine was made, mandatory provisions of search and seizure as provided under Sections 42, 43, 50, 52,52A and 57 of the NDPS Act were observed. P.W.8 in para 22 of his deposition has stated that all seized articles were handed over to the Investigating Officer (P.W.11) who was also the Incharge of Malkhana. No where in the deposition of witnesses P.W.8, P.W.10,PW 11 or any other witnesses who are police personnel, it has come that following all mandatory procedures, the search and seizure of Heroine was made. The mandatory provision is that when any search and seizure is to be made 10 the purpose of seizure has to be disclosed. The accused will be given option whether he wants to be searched by the Police Officer or he wants to be presented and examined by any Magistrate. The samples of the seized articles were to be prepared in accordance with the provisions under the Act and immediately sent for its chemical examination to Forensic Science Laboratory. The remaining article has to be kept in Malkhana after taking permission from the competent authority, in accordance with the provisions under the Act. The only evidence so far the offence under the NDPS Act is that a black bag was seized from the Dikky of Car in which sealed Heroine weighing one pound was recovered. The Forensic Science Laboratory report No. 802 dated 9.4.2008 (Ext.8) indicates that vide memo No. 1048/2005 dated 7.10.2005 a parcel through special messenger Constable No. 405 Shiv Kumar Ram was received in the office of Forensic Science Laboratory on 29.10.2005. The sample which was dispatched through special messenger on 7.10.2005, reached in the office of FSL after 22 days on 29.10.2005. The special messenger, who carried the sample to FSL, has not been examined as witness to explain the delay of 22 days in between the dispatch and receiving the sample by the FSL. Ext.8 Forensic Science Report discloses that Heroin along with glucose was detected in the white crystalline powdery Substance contained in the leather packet described. The FSL report does not disclose that what was the 11 percentage of Heroine and the glucose. On the basis of this report, it is quite difficult to say that whether sampling was done in accordance with law and whether without any tampering the sample reached at FSL, for its chemical examination. The evidence on record is completely silent on all these points. There is no evidence on record that Indica Car bearing registration no. WB-02J-9829 was hired by the passengers traveling in it or any of them was owner of the Car. There is no document on record in support of the ownership of the vehicle. There is nothing on record to show that the passengers who were traveling in a car had any knowledge regarding the presence of NDPS substance in the dikky of the Car. Six persons were travelling in the car, unless there is evidence that they had knowledge regarding the presence of such articles in the vehicles, it cannot be presumed that recovery was made from there possession. P.W.5 Satendra Kumar Yadav, P.W.6 Dipak Kumar, P.W.7 Abinash Kumar Jha and P.W.9 Sajjan Kumar were the members of the raiding party. None of these witnesses have stated anything about the search and seizure of Heroine observing special provisions provided under the NDPS Act. In fact from deposition of these witnesses, it transpires that they have no knowledge that when and where samples were prepared. Whether the left over recovered Heroine was kept at Malkhana, observing the provisions under the Act. The evidence of 12 these witnesses indicates that the same procedure was followed for search and seizure of Heroine and prohibited arms as well as for seizure and search of the antique idols. P.W.6 has deposed that all seized articles were kept in a bag and he has no knowledge that when the reports were prepared. It is well settled that the provisions of the NDPS Act being draconian in nature, unless there is evidence in support of this fact that observing all provisions and safeguards provided under the Act, the accused has been found guilty of the offence under the NDPS Act, the accused is to be held innocence. Unless, allegations observing all mandatory provisions under the Act are proved, conviction is not sustained. The most surprising aspect of investigation is that Indica Car from which prohibited arms and ammunition as well as Psychotropic Substance is alleged to have been recovered, was not seized. It’s driver was not interrogated and apprehended. This lacuna is apparent from the evidence of P.W.8 and P.W.10 and P.W.11. There being complete absence of evidence on record, for proving charge under Section 21(b) of the NDPS Act, so far conviction of appellants under Section 21(b) is concerned, the finding recorded by the trial court, regarding appellants convictions and order of sentence is not sustainable and fit to be set aside. Accordingly, it is being set aside. 13 All appellants have also been convicted under Sections 25 (1- A), 25 (1-AA), 25(1-B)A, 26(i) and 35 of the Act, Mr. Rana Pratap Singh, counsel representing some of the appellants, has submitted that conviction of appellants under Sections 25 (1-A), 25 (1-AA), 25(1- B)A,26 (i) and 35 of the Arms Act is illegal. Chapter V of the Arms Act 1959 deals with the punishment for certain offences. Section 25(1) (b) of the Arms Act provides that whosoever shortens the barrel of a firearm, or converts an imitation firearm into firearms in contravention of Section 6 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. So far conviction under this section is concerned, there is no evidence to show rather there is no allegation against the accused- appellants regarding shortening of the barrel of the fire arms or converting an imitation fire arms into a fire arms in contravention of section 6. Despite the fact that none of the witnesses have deposed in this regard and there is no material evidence to show that the accused- appellants have done any such kind of act, they have been convicted under Section 25 (1) (b) of the Act. So far conviction under Sections 25(1-A), 25 (1-AA) and 25(1- B) is concerned, that is in contravention of the provisions under the Act, as well as perverse, for having no such evidence on record. Section 25(1-A) provides that whoever acquires, has in his possession or carries 14 any prohibited arms or prohibited ammunition in contravention of Section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine. The evidence on record indicates that some secret information was received by the Superintendent of Police, Banka and on his instruction, under the leadership of Sub Divisional Police Officer, (not examined) a raiding party was formed of which P.W.5, P.W.6, P.W.7, P.W.8, P.W.9 and P.W.10 were members. At the place of occurrence, which is near Pulia, at a distance of one Kilometer away from village Kakwara, at about 3.45 A.M. a Tata Indica Car coming from Katoria was stopped, six passengers traveling in the car, immediately tried to flee away. They were chased and apprehended. No documents have been brought on record in support of this fact that the arms recovered from the Dikky of the car were the prohibited arms, as no such report was obtained by the Investigating Officer from the competent authority. There is no document, or any proof of this allegation that the passengers who were apprehended were actually carrying these seized articles or they possessed the seized articles. In fact in the cross-examination P.Ws. 5, 6 and 7 have stated that they do not know, whether the car was hired by the apprehended persons or they were the owners of the Car. P.W.8, P.W.10 and P.W.11 have stated in their cross examination that the driver of the car was not interrogated. 15 Even the car was not seized. Except the oral evidence of prosecution witness, who are police Personnels, there is no evidence to show that actually any Indica car bearing registration No. WB-o2J-9829 was stopped and from its’ dikky alleged articles were recovered. For conviction under Sections 25(1-A) of the Arms Act, it was essential to prove the acquisition, possession and carrying of prohibited arms and ammunitions by the accused persons. First of all, there is no documentary proof in support of this fact that the seized articles were prohibited arms and there is also no documentary or oral evidence to show that the apprehended persons actually had knowledge of prohibited arms kept in the Dikky of the car, in which they were traveling. In absence of such evidence conviction of the appellants under Section 25(1-A) of the Arms Act is perverse and fit to be set aside. Similarly regarding conviction under Section 25 (1-AA) of the Arms Act, it has been submitted by the counsel representing the appellants that for conviction under this section, there must have been evidence to show that the accused persons have indulged in manufacturing, sale, transfer, converting, repairing of the arms or they have tested, proved exposed or offered such arms for sale or transfer or had been its possession of prohibited arms and ammunition for sale, transfer, conversion, repair, test or proof, in contravention of section 7 16 of the Arms Act. Only there being evidence in this regard they could have been convicted and sentenced for the offence. Since, there is no evidence on record to prove that the articles seized were the prohibited arms and ammunitions and also any proof in support of their being indulged in any of the actions mentioned under Section (25(1-AA) of the Act, they could not have been convicted and sentenced for the offence. The evidence of all witnesses including PWs. 5,6,7,8,9 and 10 simply indicated that from the Dikky of the Tata Indica Car some arms and ammunitions were recovered and seized. So far seizure list witnesses are concerned; they have not supported the case of the prosecution regarding any seizure in their presence. The details of the articles as given in the First Information Report do not tally with the seizure list (Ext.5) and the deposition of witnesses like P.W.5,6,7,8,9 and 10. Some of the articles which is mentioned in the First Information Report have not been mentioned in the seizure list, or in the deposition of witnesses. The evidence of P.W.8 D.K.Sinha, the Officer In-charge of Banka Police Station, the informant of the case, do not show that when the accused persons were apprehended, they made any confessional statement regarding the possession of these prohibited arms, rather this has consistently been deposed by each of these witnesses that when the persons of these accused persons were searched nothing was recovered. 17 P.W.8 in para 38 of his deposition has specifically stated that he has no knowledge that who was the actual owner of the Car as no document in this regard was produced by the accused persons. In para 39, he has stated that he did not interrogate the driver of the car and also did not record the statement of any accused persons. In para 14 of his deposition P.W.8, has specifically stated that seized articles were never produced by him before the Chief Judicial Magistrate and he has no knowledge whether these articles were ever produced before the Magistrate by the Investigating Officer. He has also stated in his deposition that no paper was recovered from the possession of the accused persons to show their ownership and possession regarding the seized articles. Counsel of the appellants has also made a submission that a serious question can be raised regarding competence of P.Ws. 5,6,7 and 9 to depose on any of the point relating to alleged occurrence, search, seizure and recovery because no document has been produced by the prosecution in support of the fact that they were the members of the raiding party, in fact all these witnesses have denied any knowledge about the constitution of the raiding party as they were never asked to sign any documents or any entry made in register