CRIMINAL APPEAL No.8 OF 1998 (Against the judgment and order dated 8.12.1997 passed by District and Sessions Judge-cum-Special Judge, Buxar in N.D.P.S. case no. 8/93) 1. SIDHNATH CHOUDHARY, SON OF JAMUNA CHOUDHARY 2. KAMLESH CHOUDHARY, SON OF SIDHNATH CHOUDHARY BOTH RESIDENTS OF VILLAGE GOLAMBAR, POLICE STATION- BUXAR TOWN, DISTRICT- BUXAR. ---------------------Appellants Versus STATE OF BIHAR ------------------Respondent For the appellants : Mr. Durgesh Nandan, Amicus Curiae For the Union of India : Mr. Prashant Kashyap, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL Kishore K. Mandal, J. The appellants are father and son. They assail the judgment and order of conviction dated 8.12.1997 recorded by learned District and Sessions Judge-cum- Special Judge, Buxar in N.D.P.S. Act case no. 8/1993 whereby and whereunder both the appellants have been held guilty for the offences punishable under sections 20(b)(i) of the Narcotic drugs and Psychotropic Substance Act, 1985 (for short N.D.P.S. Act) as also under section 47A of the Excise Act and sentenced to undergo rigorous imprisonment for 04 (four) years. No separate sentence has been passed under section 47Aof the Excise Act. 2. Back ground facts, in a nutshell, are as follows: P.W. 2 Om Prakash Gupta, Inspector, Customs posted in the office of District Opium Authority, Faizabad, on receiving a 2 confidential information, constituted a team of Custom Department officials and arrived at Buxar and with the assistance of the police official posted at the Buxar Town Police Station initially raided the shop of the appellant Sidhnath Choudhary, Nothing incriminating was recovered therefrom. Sidhnath Choudhary was thereafter made to accompany them and the team thereafter proceeded to his house located at mohalla Golambar in the township of Buxar. The raiding party gave their own personal search to the independent witnesses drawn for that purpose and thereafter they entered into the house of the appellants and carried out search. Appellant no. 2 was found present at the house. In course of such search, two gunny bags containing ganja was/were recovered each weighing 10 K.gs.. The recovered ganja was weighed at the spot and thereafter the same was sealed in one separate cover of markin cloth after drawing 50 grams of samples therefrom which was separately sealed. The sample was kept in a tin case for test. The gunny bag was sealed in the cloths and the tin case were sealed in presence of the witnesses and the appellants who put their signatures on the Fard Baramadgi (Ext.1). Thereafter accused persons were arrested and produced at the police station. The house was locked and keys were handed over to the wife of the appellant Sidhnath Choudhary. 3. It further appears that the matter was thereafter 3 investigated by P.W 6 Rajesh Kumar Singh, District Opium Officer Faizabad. Upon receipt of the chemical analysis report (Ext.3), he submitted chargesheet whereafter cognizance was taken. Subsequently charges as indicated above were framed against the appellants which was/were read over and explained to them. The accused appellants abjured their guilt and thus claimed to be tried 4. In order to prove the charges, the prosecution examined as many as 6 P.Ws. P.W.- 1, Krishna Mohan Dubey, P.W. 3 Raja Ram Singh are the members of the raiding team. P.W. 2 Om Prakash Gupta, Inspector, Customs is the informant of the case. P.W.4 Munna Prasad is seizure list witness. P.W. 5 Surendra Bahadur Singh is an expert who claims to have counter signed the chemical test report (Ext.3) P.W. 6 Rajesh Kumar Sinha is the Investigating of the case. Besides the oral evidence, the prosecution has also produced certain documents as exhibits. Ext. 1 is the Fard Baramadgi. Ext. 2 is the signature of P.W. 2 Om Prakash Gupta on such Fard Baramadgi. Ext. 3 is the report of chemical analyst. Ext. 4 is the search authorization issued in favour of the informant (P.W. 2), Ext. 5 is the intimation of arrest respecting the present appellants. Ext. 6 is the sketch map of the place of occurrence (house of the appellants). Ext. 7/2 is the confessional statement of the appellant(s)-accused(s) recorded by P.W. 2. Self statement of seizure list witness 4 namely P.W. 4 Munna Prasad and Ambika Prasad (not examined) recorded on 4.9.1993 and 5.9.1993 respectively are on record as exhibits 2/2 and 7 respectively. 5. P.W. 1, Krishna Mohan Dubey and P.W. 3 Raja Ram Singh are the witnesses, who on the relevant day, constituted the raiding team along with P.W. 2 Om Prakash Gupta. They have deposed somewhat in identical manner. According to them, on 26.7.1993 at about 5 p.m., they reached Buxar Golambar. Appellant Sidhnath Choudhary was taken from his shop and thereafter all of them went to his house where appellant Kamlesh Choudhary was present from before. It was disclosed to them that they had come for effecting search of their house for which they had documents authorizing such search and seizure. In presence of two witnesses drawn from the nearby residents, the house of the appellants was searched and two gunny bags containing ganja like substance was recovered. Fard Baramadgi was drawn up at the said place itself and they were seized and sealed. Two samples were drawn in tin boxes which was again sealed. Rest of the article/substance found in the said gunny bags were packed in one separate cover of markin cloth mouth of which was again sealed and memos were drawn on which signatures of the appellants were taken on those memos. The remaining articles so wrapped in the cloth was brought to Buxar Police Station. They have also stated that P.W. 2 was the leader of 5 the raiding team who subsequently sent appropriate information to the higher authority respecting search and seizure so effected from the house of the appellants. P.W. 2 is the informant. During the relevant time, he was posted as Inspector in the Narcotic Drug Cell, Dehradun. On getting confidential information on 26.9.1993, he reached the house of the appellant Sidhnath Choudhary along with a raiding party/team. The police personnel drawn from the local police station were also accompanying them. They initially went to the shop of the appellant Sidhnath Choudhary and took him along and went to the house where appellant Kamlesh Choudhary was present from before. They were disclosed about their purpose and thereafter search of the house belonging to both the appellants was carried out and in course whereof, two gunny bags kept in one of the rooms of the said house each containing 10 K.gs of ganja like substance were recovered. From each bag, 50 grams of ganja was drawn as sample. The samples and the rest of the articles found in two gunny bags were separately seized and sealed after putting seal of the department. According to him, the samples so drawn were sent to Government Opium and Alkaloid Factory, Gazipur for chemical analysis and rest of the articles after sealing them was brought to the Buxar Police Station. Both the appellants were arrested. The house was also sealed and keys whereof was/were handed over to the wife of the 6 appellant Sidhnath Choudhary. In paragraph no. 2, he has categorically stated that the Fard Baramadgi (Ext. 1) was drawn in his handwriting which contained signatures of the appellants and the witnesses. From his cross-examination, it further appears that his statement was subsequently also recorded by the I.O. (P.W. 6). Paragraph 5 discloses how the search of the house was effected and the articles so recovered therefrom was/were measured. In his such deposition, he has further asserted that the samples drawn from two gunny bags, recovered from the house of the appellants, was sealed containing signatures of the officials as well as the appellants . The following day, the I.O. (P.W. 6) sent the sample for chemical test/examination. P.W. 4 is one of the search witnesses. He claims to be a shopkeeper running a shop in the Buxar bazaar. On 26.7.1993, he signed on the seizure memo as a witness. He has proved his signature appearing thereon as Ext.2 He has also proved his signature on the seizure memo respecting the sample exhibited as Ext. 2/2. In paragraph 3 , however, he states that in fact no recovery was effected in his presence and subsequently his signature was obtained on a paper. P.W. 5 Surrender Bahadur Singh is the chemical examiner of the Government Opium and Alkaloid Factory, Gazipur. He has proved the test report which according to him has been issued from Gazipur from the office of the Government Opium and 7 Alkaloid Factory, Gazipur which was prepared in the handwriting of one Brij Nandan Pandey, Chemical Assistant and also contained his counter signature. He proved the writings and signature of Brij Nandan Pandey appearing on the said report. The report is on record as Ext. 3. It is noted here that as per the said report, the chemical examiner found the following: “The sample was received in a tin container wrapped with a piece of cloth & sealed with six red lac seals of CBN & one red lac seal of Munsif, Buxar. Net wt. of the sample = 37.10 gms. The sample is „Ganja‟ & is covered under N.d.P.S. Act 1985. Remnant sample wt. 25.00 gms will be returned separately.” P.W. 6 is the I.O. He deposed that on that particular day he had seen the search authorization issued by Mr. Das, Managar, Government Opium and Alkaloid Factory, Gazipur authorizing P.W. 2 to effect search and seizure. He proved the signature of the maker of the said document (Ext. 4). He has also proved the intimation of arrest (Ext. 5) written by P.W. 2. According to him, a sketch map (Ext.6) of the house was drawn. Paragraph 4 of his deposition is about recording of the self statement of the seizure list witness namely Munna Prasad (P.W. 4). This was recorded by him in which he (P.W. 4) supported the factum of search and seizure having been effected in his presence and drawing up of samples therefrom in his presence. The signature of Munna Prasad appearing on the said self-statement is on record as Ext. 8 7. This witness (I.O.) further recorded the self-statement of another seizure list witnesses namely Ambika Prasad. He has proved his signature appearing on the self statement made by Ambika Prasad as Ext. 7/1. On conclusion of investigation, he appears to have submitted chargesheet in the case. In his cross- examination, he is said to have admitted the fact that rest of the substance/article wrapped in a cloth after drawing samples therefrom was/were kept at the Buxar Police Station. Those articles/substance wrapped in cloth is material Ext. 2. He has proved the material exhibit containing signature of both the independent witnesses and the informant (P.W. 2). The samples so drawn therefrom was also sealed which contained signature of informant (Ext. 2/3), both the seizure list witnesses namely Munna Prasad and Ambika Prasad as also signature/L.T.I. of both the appellants namely Kamlesh Choudhary and Sidhnath Choudhary which was/were obtained in his presence. In the subsequent paragraphs, he deposed about the present position of the material exhibit which, of course, was found in torn condition when produced in court after about 4 years. 6. Learned Amicus Curiae while assailing the judgment under appeal submits that the prosecution cannot be said to have proved the case beyond reasonable doubt as the seizure witnesses namely Munna Prasad (P.W. 4) has not supported the case. Referring to his evidence, it has been submitted that he denied being present at the scene of occurrence when the 9 alleged seizure(s) was/were effected from the house of the appellants. He further submitted that there is discrepancy in so far as the weight of the samples allegedly drawn from the two gunny bags and the weight of the sample which was actually received by the chemical examiner. On the strength of these submissions, he contended that the appellants deserve benefit of doubt. 7. Per contra, learned standing counsel appearing for the Union submits that appellants have not been convicted for having in possession of commercial quantity which is 20 kgs plus. They have been convicted for having in possession less than commercial quantity and greater than the smaller quantity and as such difference in weight in sample as strongly relied upon by the learned Amicus Curiae does not stand on firm ground. While supporting the impugned judgment he further submitted that the evidence on record do prove the culpability of the appellants and as such the judgment under appeal requires no interference. 8. Considering the submissions advanced on behalf of the parties, this Court now proceeds to deal with the submissions advanced on behalf of the appellants. The records revealed that while effecting search/seizure in the house belonging to the appellants, the prosecution procured two witnesses in the shape of P.W. 4 Munna Prasad and one Ambika Prasad (not examined). P.W. 4 Munna Prasad in his deposition in paragraph 1 has accepted his signature appearing on the seizure memo (Ext.2). 10 He also admitted his signature appearing on the memo relating to drawing up of sample(s). This witness further admitted his signature on his statements recorded by the Investigating Officer in which he admitted those facts. Said self statement is already on record. Of course, in paragraph 3, this witness has said that no recovery was effected in his presence and his signature was obtained on a blank piece of paper but the fact that he has accepted his signatures on the seizure memos both in respect to the seizure of two gunny bags and samples drawn therefrom as also his signature appearing on the statement recorded by the Investigating officer in which he has supported the entire factum of search and recovery is not disputed. 9. This Court is of the view that the deposition of this witness cannot be thrown off hand in view of the facts appearing from his deposition supported by document(s). This Court has, therefore, no hesitation in holding that the evidence of P.W. 4 substantially supports the prosecution case as projected at the trial. As about the discrepancy in the weight, as submitted by the learned Amicus Curaie is concerned, this Court from the evidence of P.W. 2 appearing at paragraph 1 finds that case of the prosecution is that 50 gms from each bag (two bags) were drawn as sample which was sealed in presence of the witnesses and the accuseds which was/were immediately sent to the Government Opium and Alkaloid Works, Gazipur(U.P.) for its chemical analysis/examination. True it is that the chemical 11 examiner in his report has found and recorded that the sample kept in a tin wrapped with a piece of cloth and sealed with 6 red lac seals of C.B.N. and one red lac seal of Munsi, Buxar was found containing the net weight of 37.10 gms. The explanation given by the learned Trial Court in this regard that the difference of 13 grams would be a small quantity and possibly and/or more likely got lost during the opening of the seal etc, and/or because of evaporation. Such difference in the weight of the sample so received at the laboratory, in the facts and circumstances of the case, cannot be said to be fatal to the prosecution case. The weight error either by the Search Officer or by the chemical analyst cannot be lost sight of. The contention of the learned Amicus Curiae that this difference in the weight is a fatal blow to the prosecution case is not sustainable in law and is, therefore, rejected. Appellants have been convicted for keeping in possession less than the commercial quantity. 10. This Court is also conscious of the fact that both the appellants have made confessional statements (Ext. 7/2) recorded by P.W. 2 who is duly authorized officer under section 42 of N.D.P.S. Act which is admissible in terms of section 53A of the Act. It is relevant to highlight here that while recording the statement of the accuseds-appellants under section 313 of Code of Criminal Procedure, their attention was drawn to such statements having been made by them during investigation and recorded by P.W. 2 (informant). In that view of the matter, this 12 Court is of the considered view that the prosecution has been able to prove their case beyond all reasonable doubt. The judgment and order under appeal requires no interference so far as recording guilt of the appellants is concerned. 11. Learned Amicus Curiae appearing on behalf of the appellants next submits that the appellant deserves a lenient sentence as admittedly the occurrence had taken place sometimes in the year 1993. They have been made to fight litigation all through these years. Fighting litigation in itself is a punishment. It has been contended that the appellants who are father and son are the first offenders. It has further been pointed out that appellant no. 1 Sidhnath Choudhary (father) at the time of recording of the order of conviction was found aged about 60 years whereas the appellant no. 2 Kamlesh Choudhary was aged about 25 years. Learned counsel for the Union on the other hand submitted that there is/are no mitigating circumstance warranting sympathy of the Court. 12. Having considered the rival submissions made on this aspect of the matter and after hearing both the sides, this Court is of the view that following sentence shall serve the cause of justice: Both the appellants namely Sidhnath Choudhary and Kamlesh Choudhary are hereby sentenced to undergo rigorous imprisonment for 03 (three) years under section 20(b)(i) of N.D.P.S. Act. No fine is imposed. No separate sentence is 13 awarded under section 47A of the Excise Act. Records indicate that the appellants were on bail and as such their bail bonds are hereby cancelled. They are directed to surrender to arrest forthwith. 13. In the result, the appeal stands dismissed with modification in the sentence. Patna High Court Dated 16th March, 2009 NAFR/pkj ( Kishore K. Mandal, J. )