Criminal Appeal (SJ) No.329 of 2010 Against the judgment of conviction and order of sentence dated 30.03.2010 and 7.4.2010 respectively passed by Sri Vijay Kumar Jain, Additional Sessions Judge VII, Patna in Special Case no. 37/2008 arising out of Bikram P.S. Case no. 102/08. -------------- Naseeb Paswan son of Mahipat Paswan resident of Rustampur, P.S. Raghopur, District-Vaishali. …..Appellant. Versus The State of Bihar. ……Respondent. WITH Criminal Appeal (SJ) No. 343 of 2010 Satish Ray son of Kudai Ray resident of village Rustampur, P.S.- Raghopur, District-Vaishali. ……….Appellant. Versus The State of Bihar …….….Respondent. (In CR. APP (SJ) No. 329 of 2010) For the Appellant/s : Mrs. Anita Kumari Singh, Amicus Curiae (In Cr. Appeal No. 343 of 2010) For the Appellant : Mrs Rina Sinha, Amicus Curiae For the State : Mr. S.N. Prasad (in both Appeals). -------------------------- THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ******* Dharnidhar Jha, J. These two appeals arise out of the judgment of conviction dated 30.03.2010 passed by the learned Additional Sessions Judge VII, Patna in Special Case no. 37 of 2008. The two appellants were charged 2 together under Section 20(b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act and by the above judgment were found guilty of committing that offence. After being heard on the quantum of sentence, each of the appellants was directed to suffer rigorous imprisonment for 7 years and also to pay a fine of Rs. 50,000/- each, else to suffer rigorous imprisonment for a further period of one year. 2. Abhay Kumar Tiwari (PW-1) was checking the vehicles under routine vehicle checking at Moriyawan village. During that vehicle check, a vehicle was found coming from Bihta. It was stopped. The informant smelt foul as Ganja was lying somewhere inside it. He found a white colour sack which was kept in between the two appellants who were sitting in the rear seat of the Magic passenger vehicle. The sack was seized and on examining the contents of the sack Ganja, weighing 5 Kg. & 100 grams, was found. The two appellants were asked to explain the possession which they could not do as a result of which they were arrested. Seizure list was prepared in respect of the seizure of Ganja in presence of witnesses and thereafter 3 the two appellants were brought to the police station along with the contraband article where PW-1 lodged his report. 3. On the basis of Exhibit 1, the F.I.R. of the case Exhibit-3 was drawn up and the case was investigated into. The investigating Officer has not been examined but what appears from the impugned judgment is that the materials were found sufficient to send the two appellants up for trial because the Forensic Science laboratory report (Exhibit-5) also confirmed the seized substance as Ganja. 4. The defence of the appellants was of innocence and false implication by the police. 5. During the course of the trial 9 witnesses were examined, out of whom PW-9 Brajendra Prasad Singh was a formal witness, having produced the material Exhibit-I i.e., seized Ganja. Other witnesses were members of the raiding party and they were testifying to facts that during the routine vehicle check, the Magic- vehicle carrying passengers was found occupied in its rear seat by the two appellants in the laps of whom a sack was kept and as may appear also from the evidence 4 of PW-1 and other witnesses. Exhibit-5, the report of the Forensic Science Laboratory confirmed that the sampled article which was transmitted to it for analysis and report was containing Tetra Hydro Cannabinol (T.H.C.) which is the chief intoxicating ingredient of Ganja and the seized article was, as such, reported Ganja. The trial Court on the basis of the evidence of 8 witnesses and the report of the FSL passed the impugned judgment. 6. It was contended by learned amicus curiae appearing in the two appeals that there was complete lack of evidence as regards the sampling. It has not been stated by PW-1 as to who was the Officer who had seized the article as also as to when it was delivered to the Officer-in-charge of the police station and what was the entry number or relevant entries in the Malkhana register. Evidence was also not available to indicate that the provisions of Section 55 of the Act was complied with and, as such, sample which was drawn was not as per the provision of law. Contention was also that the sampled article was sent by PW-1 on 01.10.2008 but the same was received in the office of the Forensic Science 5 Laboratory on 28.10.2008, i.e., after 19 days of the dispatch from Bikramganj which was received in Patna. It was contended that the report was submitted on 09.03.2010, i.e., after one year and seven months. It was contended that the delayed dispatch, the delayed receipt of the sample and the delayed submission of the report were all going to the root of the charges entitling the appellants to acquittal. 7. It was next submitted by the learned amicus curiae that PW-1, the Officer who had seized the article, had not given any evidence as to when the seized article was delivered into the custody of the Officer-in-charge of the police station and as such there was no evidence at all that the receipt of the seized article was acknowledged by making relevant entries in the Malkhana register. The Officer-in-charge of the police Station or the investigating Officer has not been examined nor the Malkhana register was produced so as to satisfy the Court as regards compliance with the provisions of Section 55 of the Act. As regards the provision of Section 55, it requires that on delivery of the seized article into his custody, the Officer-in-charge 6 shall permit the Officer making the seizure of the contraband to draw sample and at that time he shall remain physically present himself also. After samples have been drawn, that particular provision requires affixing of seal to such samples taken there from and in case of samples being drawn the same has also to be sealed both by the Officer who had seized the article as also the Officer-in-charge of the police station. I have already indicated that there is complete absence of evidence indicating details which are required as regards the compliance with the provisions of Section 55 of the Act. PW-1 is silent, as I have just pointed out, on those aspects and the Officer-in-charge or the investigating Officer had not come before the trial court to testify to the compliance as required by Section 55 of the Act. 8. I had noted on earlier occasions in different cases that the purpose of putting such stringent provisions is very sacrosanct. The penalty provided by different provisions of the Act for violation of the provisions or the rules made thereunder are very stringent. In some cases there could be imprisonment for not less than of 10 years and fine may also go up to 7 Rs. 1,00,000/-. The very possession of Narcotic Substance has been made punishable and some of the provisions which have been put in the Act are simply unknown to the ordinary criminal jurisprudence and rules of evidence. Even the statement of an accused has been made admissible if he has confessed by accepting the commission of offence in writing. If the possession is proved, the accused has to explain as to why he happened to have the Narcotic Substance or doing in his possession. On his failure to explain on these counts may entail upon him an order of his conviction and infliction of harsher punishment. Some presumptions have been raised against the accused in that those behalf. These are the reasons that some checks and balances have been provided in the Act so as to eradicating any chances of false implication of innocent persons by alleging commission of such offences by him. This is the reason that Courts have regularly held that event if a provision is obligatory but the non-compliance of such obligatory provision may affect the very merit of the evidence of the case and in that situation also the ordinary result shall have to be the acquittal of the 8 accused. Section 55 as it has been formulated and worded appears a mandatory provision, for the reason that the provision firstly, attempts to eliminate any chances of adultration or substitution of the seized article and as such requirement of delivering the property immediately to the Officer-in-charge of the police station who is required to secure it, by putting his own seal over the seized article. The purpose is that there could not be any chance of adding up anything to the seized article which had been produced at the police station so that there could be any adulterated final result of the proceeding. Likewise, the presence of the Officer-in-charge and the Officer seizing the article at the time of drawal of the sample is also mandatory so that it could not be suspected, that it was a manoeuvred sampling by any Officer who could not have been fair and impartial in his official act and as such the report is also manoeuvred. On account of these reasons, I have consistently formed an opinion that compliance with Section 55 is a mandate and any fault in that behalf shall result in the failure of the charges. 9. There is complete lack of evidence regarding 9 the compliance of the provisions of Section 55 of the Act. There is delay in receipt of the sampled substance and an enormous delay in submission of the report. 10. That being the situation the two appeals succeed. The two appellants are acquitted of the charges for which they were convicted and, as such, the sentence passed upon each of them is also set aside. The two appellants are in custody. They shall be released forthwith, if not wanted in any other case. 11. Smt. Anita Kumari Singh (Criminal Appeal no. 329 of 2010) and Smt. Reena Sinha (Cr. Appeal no. 343/2010) have assisted this Court and they deserve one fee each of argument which is directed to be paid by the Patna High Court Legal Services Committee for which purpose, let a copy of the first and the last pages of the judgment be handed over to them. Patna High Court, Dated 29th July, 2011 B.Kr./Kamlesh/NAFR (Dharnidhar Jha, J.)