Criminal Appeal (SJ) No.227 OF 2010 --------- Against the judgment and order of conviction and sentence dated 6.2.2010 and 8.2.2010 passed by the Sessions Judge, Siwan in Tr. No. 14/2008 / 13/2009 arising out of Daraunda P.S. Case no. 33 of 2006. ------- Lallan Rai, son of Jagarnath Rai, resident of village – Chhotka Telpa, P.S. – Chapral Town, District – Saran at Chapra …………… Appellant Versus The State of Bihar ………….. Respondent ---------- For the Appellant : Sarvshree Vikram Deo Singh, Narendra Kumar, Advocate For the State : Shri Satya Narayan Prasad, APP ------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA ---------- Dharnidhar Jha, J. The solitary appellant along with his co-convict Ram Bahadur Soni were put on trial in Tr. No. 14/2008 / 13/2008 arising out of Daraunda P.S. Case no. 33 of 2006 by being charged under sections 16 and 20(b) (ii) ( c ) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the Act’) by the learned Sessions Jude, Siwan and by judgment dated 6th February, 2010 were found guilty of committing the said offences. After hearing the convicts on sentence, the learned judge directed by the order of sentence dated 8.2.2010 to suffer RI for ten years as also to pay a fine of rupees one lac. There was no sentence prescribed in case the appellant defaulted in making payment of fine. The appellant Lallan 2 Rai assails the judgment and order of conviction and sentence passed upon him by preferring this appeal. 2. Informant Vijay Kumar ( P.W. 8) along with his patrolling party, was returning from patrolling duties and when he reached at a particular place, he found a jeep coming, which was bearing registration number HR-29/2708. As soon as the police party attempted to approach the jeep, four persons jumped out of the vehicle, out of whom two ran away and two persons were chased and caught with the help of villagers. The jeep was searched and it was found containing a box inside it and on further probe of the box, the same was found containing seventy packets of ganja, weighing 80 Kgs. The recovered ganja was seized in presence of P.Ws 1 and 2 and the two persons, who were caught, were arrested. The seized ganja and the arrested persons were brought to the police station and P.W. 8 submitted his self- statement (Ext.2) and on that basis of Ext.4 (FIR) was drawn up and investigation was taken up by P.W. 9 who deposed that he inspected the place of occurrence, drew sample of recovered article and forwarded the same through special messenger to Forensic Science Laboratory for chemical analysis and report and after finding the material sufficient, sent up the two accused including the present appellant for trial, which ended in their conviction and sentence as mentioned above. 3 3. After having heard learned counsel for the appellant and learned counsel for the state, what this court finds is that the appeal has to be allowed on merely a couple of reasons. 4. Section 52 of the Act requires that as soon as any narcotic substance or drug is seized, that has to be delivered to the Officer Incharge of the nearest police station. Section 55 of the Act requires that as soon as the seized substance is delivered to the Officer inchage of the police station, he shall secure the same by properly sealing it and so that the same was not pilfered or substituted. Thereafter, he shall enter the same into a register and to allow the officer who had handed the substance over to him to draw samples in his presence. It is further required by that particular provision that as soon as the sampling is done and it is put inside any container or packet, the same has to be sealed both by the officer who seized the substance as also the Officer incharge of the police station. The purpose of putting down the above safeguards by laying down the provision of section 55 of the Act is to eradicate any chance of pilferage of substance or substitution of the same as appears indicated also by section 52A(1) of the Act. The same underlying principle is also behind the other part of the provision contained under section 55 of the Act, which requires the sealing of the sampled articles both by the officer who had seized the substance as also the Officer Incharge of the police station who had received the possession of the substance after its seizure. Both the officers are required to put their own respective seals over the container of the 4 sampled substance. The purpose of doing so, as I have just pointed out, is to ensure that the same substance is sampled and properly sealed and thus, the claim or chances of any other substance being sampled is eradicated. 5. After considering the evidence of P.Ws 9 and 10, what this court finds is that there is no mention in the evidence of the two witnesses that the substance was sampled by both of them in presence of each other and both had put their respective seals on the container of the sampled article. Not only that, the inventory of the seized article as regards the same being kept in Malkhana of the police station has also not been produced which could have easily been produced by the production of the Malkhana register and by examining the incharge of Malkhana who could have testified as to when and by whom the substance was delivered to be kept in Malkhana and what were the relevant entries in that behalf. In addition to the above, there is no evidence also that as soon as the article was transferred into the possession of the Officer Incharge, seal was put in the store or the Malkhana to secure it properly. I have pointed out a bit earlier as to what is the purpose of putting down this safeguard by laying down the provisions of sections 52A and 55 of the Act. It is simply to eradicate or obviate any chance of the seized article being pilfered or being substituted or adulterated. This is one aspect of the matter. 6. The other aspect of the matter is that P.W. 9 stated that after sampling the article, he dispatched the same through the special 5 messenger to the Forensic Science Laboratory. The FSL report is available on lower court records at page 41 and it is indicated that the parcel was received through one Brajesh Singh, Constable on 27.9.2007. The evidence of P.W. 9, the informant of the case, indicates that just after having seized 80 Kg. of ganja he put the same into the Malkhana on the same day. There is no date stated either by P.W. 9 or P.W. 10 on which the samples were drawn. But the memo by which the sampled article was transmitted from the police station to the FSL is dated 20.9.2007 which shows that the sampled article was dispatched from the police station to the FSL after one year five months of its seizure. As regards the report, it is dated 1.9.2009, which indicates further that the report was submitted after another two years of the receipt of the sample in the FSL. 7. It has consistently been held that if there was an unexplained and inordinate delay in dispatch of the sampled article and there was yet another delay in furnishing the report, then it could not be held that the prohibited article or substance which was seized by the police or the competent authority, had been sampled and analyzed by the chemical analyst and these circumstances shall definitely create a doubt that the substance which was seized was never sent to the FSL. These are the two reasons upon which I find that the judgment of conviction and sentence could not be sustained and thus, the judgment of conviction and order of sentence passed against the appellant appear not sustainable. 6 8. In the result, this appeal is allowed. The judgment of conviction in respect of both the accused Lallan Rai and Ram Bahadur Soni is hereby set aside. The sentence passed upon them is also hereby set aside. The appellant is in jail. He is directed to be released forthwith if not wanted in any other case. Convict Ram Bahadur Soni has not preferred any appeal and he is supposed to be in custody. If he is in custody, then he shall also be released forthwith if not wanted in any other case since the whole judgment and order of conviction and sentence against him also has been set aside. 9. Before I part with the record, I find that the witnesses who were accompanying the informant P.W. 9, like, P.W. 3 Manoj Kumar Manjhi, Chowkidar 6/5 of Daraunda Police station and constables, like, Manindra Kumar Shukla Constable no. 6291 (P.W. 4), Arvind Kumar Chaturvedi, Constable no.5549 (PW 5), Awadhesh Manjhi, Home Guard/CBHG 6096, (P.W. 6) and Mukesh Kumar Thakur, Home Guard/ 5788 shamelessly stated before the court that they did not know the accused who was standing in the dock and they were simply refusing to identify them though it was a fact that they were members of the party which was coming back after performing patrolling duty in the wee hours on 2.4.2006. If this could be the conduct of police personnels in a case of so serious a nature, the court feels that those persons must not continue in service. But, this court is not an arbiter to propose as to who should continue in the services of the police department unless the matter is taken up by the authorities in a properly 7 constituted proceeding and the same is inquired into by examining the concerned persons as witnesses in the department. I direct the Director General of Police, Bihar, or other competent authority to initiate an appropriate proceeding against the above named employees of the police department for going hostile as regards the identification of the accused who were allegedly captured after chase when they were found trafficking narcotic substances. 10. Let a copy of the present judgment be transmitted to the Director General of Police, Bihar for the needful. (Dharnidhar Jha, J.) Patna High Court, The 19th May, 2011, NAFR/Anil/