1 Criminal Appeal (SJ) No.67 OF 2009 - - - - Against the judgment of conviction dated 24.12.2008 and order of sentence dated 3.1.2009 passed by the Ist Additional Sessions Judge-cum- Special Judge, Sitamarhi, in Trial No. 62 of 2008 arising out of Sursand P.S.Case No.17 of 2006 under Section 20(b) of the N.D.P.S.Act. - - - - BHANU MANDAL, son of late Sukhdeo Mandal, resident of Village Gena Bathnaha, P.S.Jaleshwar, District Mohtari( Nepal) … … Appellant Versus THE STATE OF BIHAR … … Respondent For the appellant: Shri Ashok Kumar Jha,Adv. For the State: Shri S.N.Prasad, Addl. P.P. - - - - P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha,J.- The guards of Seema Suraksha Bal( S.S.B) watching Into-Nepalese border, were on surveillance at a particular point at no man’s land, as indicated in Ext.3, the written report filed by P.W.1 Inspector Tapas Sen Gupta of S.S.B. before the Officer-in-charge of Sursand Police Station. It was a foggy evening. Three persons appeared coming from Nepal into India. They were challenged. One of them threw the bundle he was carrying and retreated back to the Nepalese border with his other companion. One Bhanu Mandal had ingressed into India and he was apprehended by P.W.1. On looking into the contents of the two bags P.W.1 and his companion personnel of S.S.B. 2 came to find that it was Ganja. The appellant was arrested. 2. The written report(Ext.3) along with the present appellant was presented before the Officer-in-charge of Sursand Police Station on the basis of which F.I.R. (Ext.4) of Sursand Police Station Case No.17 of 2006 was drawn up. The investigation was entrusted to P.W.4, A.S.I. Hridyanand Mahto. P.W.4 investigated the case, as may appear from his evidence, inspected the place of occurrence, recorded the statements of the witnesses and drew up sample of 100 grams of seized Ganja for forwarding the same to the Forensic Science Laboratory for analysis and report as regards the chemical contains of the seized substance. On completion of investigation, he sent up the present appellant for trial. 3. What may appear on the resume of the facts is that, in fact, there was no recovery directly from the person of the present appellant nor there was any prior information that any one was likely to import to India any narcotic drug or substance. As such, the contention which was raised on non- compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act( for short the Act) appears irrelevant. 3 4. As regards the status of the witness P.W. 1, Tapas Sen Gupta the informant of the case, his companion constables, P.W. 2 Gopal Singh, P.W.3 Surajpal and P.W. 6 Head Constable Rajendra Singh appear supporting him on the manner in which the appellant had been apprehended and Ganja was recovered. However, on a scrutiny of evidence of P.Ws. 2, P.W. 3 and P.W. 5 Jagdish Singh who was yet another Inspector of S.S.B., indicates as if he had not made any statement before the police. Similar is the evidence of P.W. 7 Wakil Prasad Singh, P.W. 5 Jagdish Singh and P.W. 4 Hridyanand Mahto also. On the very reason, their evidence appears quite inadmissible. Thus, the Court has to consider the evidence of P.W. 1 Tapas Sen Gupta and P.W. 6 Rajendra Singh who was the head constable. 5. There might not be any doubt that some persons were attempting to ingress into the Indian territory and might be, that some of them had been carrying two gunny bags containing Ganja but right from the inception of the case, till the evidence which was recorded to prove the charge it is quite indefinite as to who was the person who had thrown the two gunny bags full of Ganja. The appellant 4 appears suspected to be one of the companions of accused persons who had run away. 6. The other aspect of the case is that P.W. 1 has stated that he had handed over the accused and the seized substance to the Officer-in-charge of Sursand Police Station. This could be the part compliance with the provision of section 55 of the Act which requires that the Officer seizing the substance or drug should immediately hand over the seized material to the Officer-in-charge of the Police Station in whose local area jurisdiction the offence has been committed. The other part of the same provision further requires that as soon as the article is seized and the same has been delivered to the Officer-in-charge of the Police Station, it has to be secured by putting a seal for safe custody. The purpose of putting the seal is quite sacrosanct. It is to obviate any attempt or real act to adulterate or to replace the real narcotic substance or drug. The further parts of Section 55 of the Act require that the Officer-in- charge who had been entrusted with the custody of the seized material shall have to allow the Officer who had seized it to take out the sample out of the whole seized material. Thus, what was required was that at the time of sampling P.W.1 5 the Inspector of S.S.B. ought to have remained present and after he had taken out the sample the third part of the provision was requiring a seal of the Officer-in-charge of Sursand Police Station which could have been put on the packet or container in which the sampled article had been secured. On perusal of the evidence of the witnesses, what this Court finds is that there is no evidence on the part of the provision as regards the same being handed over to the Officer- n-charge of the Police Station and a seal being put so as to securing it into safe custody and further putting yet another seal on the sampled article after it had been put into the container for being dispatched to the Forensic Science Laboratory. The purpose of putting the seal finally on the sampled article could be viewed as an attempt to eradicate any chance of replacing the real seized article or to adulterate it by any other article. In other words, if the article was really seized and it was definitely a narcotic drug or substance, it may not be replaced by some spurious article so as to influencing the chemical report. Thus, the purpose of putting the seal appears mandatory to this Court. 6 7. As may appear from the lower court records, the sampled article was being sent to the Forensic Science Laboratory belatedly and the Special Judge who was allowing forwarding of the sampled article to the Forensic Science Laboratory was issuing necessary direction to the Superintendent of police, Sitamarhi, to obtain an explanation from P.W. 4 A.S.I., Hridyanand Mahto as to why he was so indifferent on complying with the law as regards the quick dispatch of the sampled article to the Forensic Science Laboratory. The date of occurrence in the present case was 13.2.2006 and the Special Judge was requested to direct dispatch of the sampled article to the Forensic Science Laboratory on 31.3.2006, i.e., after one month and eighteen days. What is further found by this Court is that the report after chemical analysis of the sampled article was prepared by the Forensic Science Laboratory on 14.10.2008, i.e., after more than two years of having received the sampled article. One could simply refer to the decision of the Supreme Court in Valsala Vs. State of Kerala reported in 1994 Cri.L.J.1 in which the Supreme Court was acquitting the appellant in that case on the ground of delay in sampling, dispatch and preparation of the chemical analysis report. 7 8. Here in the present case, not only the dispatch was delayed and chemical analysis was conducted belatedly after more than two years, but other deficiency of the same was that the mandatory provision like Section 55 of the N.D.P.S. Act was also staring directly in the face of the court. In addition to that, the other non- compliance appears of Section 52 of the Act which requires that the storage of the seized substance either in the Malkhana or at any other place has to be entered into a particular register maintained or kept for the purpose by making inventory and the storage could be certified by the Magistrate deputed for the purpose. The Magistrate is required to certify that the storage has been made in his presence besides some photograph has also been taken in his presence and he has further to certify the taking of photograph as well. The Magistrate is also to certify that the drugs were sampled in his presence after the samples were drawn from the bulk of the seized article. The non-compliance of the provision of Sections 52 and 55 of the Act and other frailties afflicting the prosecution case make the appellant’s conviction and sentence passed upon him not sustainable in law. 8 9. In the result, the appeal is allowed, the judgment of conviction and order of sentence passed against the appellant are set aside and he is acquitted. 10. The appellant is in custody. He shall be released forthwith, if not wanted in any other case. ( Dharnidhar Jha, J.) Patna High Court The 9th May, 2011 Kanth/N.A.F.R.