CRIMINAL APPEAL No.392 OF 2007 ******* Against the judgment and order dated 03rd February, 2007 and 7th February, 2007 passed by Sri Binay Shankr Mishra, Additional Sessions Judge, Fast Track Court no. 5, East Champaran, Motihari, in NDPS Case no. 61 of 2003 / 17 of 2005. ******* MD.KALIM @ MD.KALIM ANSARI------Appellant Versus THE UNION OF INDIA------------Respondent ******* For the Appellant : M/s Yogesh Chandra Verma, Satish Kumar Sinha & Javed Aslam For the Union of India : Mr. Sarvadeo Singh, S.C., C.G. ******* P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. The sole appellant has preferred this appeal against his conviction for the offences under Sections 20(b) (ii)(c) and 23(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the “NDPS Act”) and sentenced to undergo rigorous imprisonment for fifteen years and a fine of Rs.1.50 lacs 2 in default of payment of fine, to undergo further rigorous imprisonment for ten months for the offence under Section 23(c) and rigorous imprisonment for fourteen years and to pay a fine of Rs.1.25 lacs in default of payment of fine further rigorous imprisonment for a period of eight months for the offences under Section 20(b)(ii)(c) of the NDPS Act. However, sentences are to run concurrently awarded in NDPS Case no. 61 of 2003 / 17 of 2005 by Sri Binay Shanker Mishra, Additional Sessions Judge, Fast Track Court no.5, East Champaran, Motihari. By same judgment second accused Lal Babu Mian @ Md. Lal Babu, who was also facing trial for the same offences, was ordered to be acquitted. 2. The prosecution case, in short, is that on the basis of an information at about six hours on 24th August, 2003 a team of Officers of Custom of local Custom Station, Raxaul, intercepted at Gamariya Chowk, Raxaul, a container bearing No.GSTU – 3445103 (Gen star) loaded on Asoka Leyland Truck bearing registration no.WB 15/ 5961 in standing position. The appellant was said standing beside the truck In course of search, 3 container was opened in presence of two independent witnesses and 33 bundles of Ganja wrapped in P.P bags were recovered and it revealed from the alleged statement of the appellant that it was loaded at National Highway about half kilometer away from south of Gamariya Chowk, Raxaul by co-named accused and the truck was brought to the Chowk where it was intercepted and appellant was waiting for clearance of signal from said Lal Babu Mian. Container along with the driver and independent witnesses were brought to local custom station of Raxaul where further investigation / formalities held. The representative sample of such Ganja was drawn and rest of Ganja was weighed which was found 575 Kgs (in gross and moist condition). In course of further examination of the vehicle and the person some documents related to the vehicle were recovered whereas on personal search of the appellant only a sum of Rs.4,000/- (Indian Currency) was recovered. During interrogation appellant‟s statement was recorded under Section 67 of the Act wherein he said to have not only accepted the guilt but revealed information regarding co- 4 accused, Lal Babu Mian, at whose instance Ganja was recovered, and was to deliver at Begusarai. In the meantime, it was intercepted. House of Lal Babu Mian was also searched consequently. Nothing was recovered. However, complaint against both were filed. Meanwhile, sample was examined at Government Opium and Alkaloid Works, Ghazipur (U.P.), by Chemical Examiner and was found to be Ganja. 3. During trial, prosecution has examined altogether twelve witnesses, namely, Shashank Bhushan, Ashwini Kumar Singh, Srikant Choudhary, Sant Kumar Gagrai, Jitendra Kumar Sinha, Ashok Kumar Choudhary, R.S. Sharma, Tara Pd. Chattrarjee, Md. Ezaz Hussain, Sangita Devi, Krishna Ballabh Prasad and Md. Sadman, besides the following documents. “Ëxhibits-1 to 1/1- Interrogatory statement of Kalim Ansari and Lal Babu Mian, Exhibits-2 to 2/1- two letters, Exhibit-3- Panchanama, Exhibit-4 Seizure list, Exhibit-4/1- Seizure list, Exhibit-5, Voluntary statement of Md. Kalim Ansari, Exhibit- 5/1- Voluntary statement of Md. Lal Babu @ Lalbabu Mian, Exhibit-6- attested complaint, Exhibit-3/1- Panchnama of Md. Lal Babu Mian, Exhibit-7- Court permission (order sheet), Exhibit- 8- Destruction, Exhibit-9- Chemical report.” 4. There is no evidence in defence. 5 However, in his statement under Section 313 of the Code of Criminal Procedure, both the accused persons, including the appellant, denied their complicity and had stated about false implication and making their statement due to fear of assault. 5. Learned counsel for the appellant, while assailing the findings of the Court below, submitted that there is no evidence showing complicity of the appellant in the instant case. He was not the driver of the vehicle nor there is compliance of mandatory provisions of that such as the provisions contemplated under Sections 50 and 55 of the NDPS Act, neither the seized articles were properly weighed nor sample was prepared and also Court trying the appellant had any jurisdiction as under the Act, trial of the offences are to be conducted by Special Judges but not by any Court who has not been empowered to do so, such as Additional Sessions Judge, Fast Track Court On the other hand, learned counsel appearing on behalf of the State supported the findings of the Court below and submitted that Court had jurisdiction to try and though there was some sort of omissions while 6 taking samples and weighing the packets but in no case they are fatal to the prosecution case. 6. Now, on the basis of materials available and submissions made it is to be determined whether the prosecution has been able to substantiate the charges beyond any shadow of reasonable doubt or finding of the Court below requires any interference. 7. Team leader, P.W.1, being Superintendent of Custom, was a Gazetted Officer. 8. The prosecution case is stated in the complaint petition, Exhibit-6. From the bare reading of the same, it appears that 33 bundles of Ganja wrapped in P.P. bags were recovered. Representative samples were drawn, thereafter rest of the Ganja was weighed and found to be 575 Kgs. but nowhere in the complaint petition it is mentioned that either samples or remainder were sealed and marked when the samples were weighed. In the normal course 33 bundles so recovered would have independently been weighed and samples from each bags could have been taken but nothing of the kind was done. The learned counsel for the State drew our attention 7 towards internal Circular of Department. Relevant portion of which reads as such: “2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical makings and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects the packages/containers may be carefully bunched in lots of 10 packages /containers except in the case of Ganja and Hashish (Charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.” On the basis of above, it is submitted that it was not necessary to prepare samples from each bags but we failed to appreciate such submission since before taking the privilege as mentioned towards end of such Circular it is required for the Authority to be sure by definite test that they are identical in weight and other things. But, in the instant case, admittedly, there is no such details or test. The Chemical Examiner report, Exhibit-9, also speaks „received one sealed envelop of sample from Inspector, L.C.S. Raxaul, vide letter no. C.No. VIII(10) 17/Cus/ Seiz/Rxl/ 2003/6964/25.8.03.‟ It also does not indicate any specific mark and after 8 examining such sample in the report column it is mentioned that “The sample received was duly sealed net wt.= 14.796 gm. The sample is in the form of dried flowering and fruiting tops along with dried greenish leaves stem pieces. On the basis of microscopic & chromatographic examinations, it is concluded that the sample under reference is Ganja (cannabis) within the meaning of NDPS Act, 1985. Remnant wt. net wt. 9.10 gm will be returned separately. Sd/ 27.09.2003 Chemical Examiner” 9. From the above it appears that sample of about 15 gms. cannot be said that from all bags anything was taken for samples. 10. The prosecution is further silent about the remainders which, according to prosecution version, weighs 575 Kgs. As per Section 55 of the Act it is to be properly marked and produced to the nearest Police Station for further needful. Such provisions of law cannot be ignored by the investigating / prosecuting agency as held by the Apex Court in the case of Gurbax Singh V. State of Haryana, (2001) 3 SCC 28. 11. That apart there was personal search and seizure of the appellant besides the truck but neither in 9 the complaint petition nor in evidence even one single witness has said that appellant was made aware of his right to be searched in presence of a Gazetted Officer. Unless this mandatory provision of law is complied with conviction is not sustainable even if, on other factual aspects, prosecution is able to establish its version. Here learned counsel for the State led emphasis that P.W.1, Shashank Bhushan, being Superintendent of Custom, was a Gazetted Officer. Moreover, Section 50 of the Act is applicable only when there is personal search. No doubt, P.W.1, who was leader of the raiding team, was a Gazetted Officer but this alone is not sufficient to comply the mandatory provision of law. It is the duty of the raiding party to make the affected person aware of his right to be searched before a Gazetted Officer and also to make him aware that one of the members of the raiding party is empowered to do so, being a Gazetted Officer. But at no point of time, this was done and there is personal search of the appellant also besides search of the container and before personal search of the appellant he must have been made aware of his legitimate right only 10 because of one of the members is a Gazetted Officer mandatory requirement is not fulfilled, as held by the Apex Court in the case of Ahmad V. State of Gujarat, (2000) 7 SCC 477. Apart from the above there are other decisions of the Apex Court one of them is reported in the case of Kalayayath Nassar V. State of Kerala, A.I.R. 2000 S.C. 733 on this point and the conviction of the accused persons have been vitiated on the ground of non- compliance of mandatory provisions of law as contemplated under Section 50 of the NDPS Act. 12. On facts also prosecution has committed some vital laches which could lost sight of the court below. It is the prosecution case, that the truck was in standing position and appellant was found behind it. He was not apprehended from inside the truck or at its driving seat, rather as per prosecution version on interrogation he disclosed his identity as driver of the said vehicle. But, there is nothing more to establish that appellant had any concern with the vehicle in question except his alleged interrogatory statement recorded under Section 67 of the NDPS Act. The prosecution has 11 stressed much upon the same to establish complicity of the appellant. P.W.1, in paragraph 4, has said that the appellant, Md. Kalim, was three to four steps behind the truck. P.W.2 and other witnesses also speaks same thing except P.W.4, Sant Kumar Gagrai, in paragraph 1 who has further said that taking into consideration security of the truck it was brought from the place of interception to the Custom office and truck was driven by the appellant. Same thing has also been said by P.W.9, Md. Ezaz Hussain, in paragraph 2 that truck was brought to the Custom Office in the driving of the appellant but none of these two witnesses, besides others, have ever stated that how the appellant could be able to drive the vehicle in question from where the key of the vehicle was traced out. Whether it was inside the truck itself at its key hole or it was recovered from the possession of the appellant. The prosecution is silent about the key. The vehicles, under special circumstances, could start and move even without key. It was the duty of the prosecution to be specific how the appellant could be able to drive the vehicle from the place of its interception to the local 12 Custom station. In absence of such a small but vital thing, prosecution cannot be said to have establish that the appellant was driver of vehicle in question. 13. Detailed discussions of other witnesses seems not required taking into consideration the above vital factual and legal aspect cutting very root of the prosecution case which lost sight of the Court below. 14. In face of facts and circumstances, discussed above, it is not relevant to decide whether court of Additional Sessions Judge, Fast Track Court, was entitled to try a case of Special Judge or not. Normally all the Additional Sessions Judges are designated as Special Judges to try the cases under the Act. 15. Considering all aspects of the matter, I find and hold that prosecution has not been able to establish the charges against the appellant and mandatory provisions of law has also not been complied with. Consequently, conviction and sentence, awarded by the court below, is hereby set aside The appeal stands allowed and appellant, Md. Kalim @ Md. Kalim Ansari is ordered to be released forthwith, if not required to be 13 detained in any other case. Sd/- (Akhilesh Chandra, J.) Shyam Kishore Sharma, J. I agree. Sd/- (Shyam Kishore Sharma, J.) Patna High Court, The 15th April, 2010. AAhmad/ (NAFR)