CRIMINAL APPEAL (DB) No. 614 OF 2009 **** Against the judgment dated 08.06.2009 and order of conviction dated 20.06.2009 passed by Shri Kamaldeo Singh, Additional Sessions Judge FTC II, Motihari in N.D.P.S. Case No. 85 of 2004. **** 1. SUNIL KUMAR SHARMA @ SUNIL KUMAR RAM, SON OF SHRI RAM PRASAD RAM, RESIDENT OF VILLAGE – SARYA CHAINPATI, P.S. – PAHARPUR, DISTRICT – EAST CHAMPARAN. 2. SUMAN KUMAR RAM @ SUGAN KUMAR RAM, SON OF SHRI MAKUNRAM, RESIDENT OF VILLAGE – HARSIDHI PAKARIA, P.O. + P.S. – HARSIDHI, DISTRICT – EAST CHAMPARAN. -------------------(Appellants) Versus THE UNION OF INDIA THROUGH CUSTOM INSPECTOR, MOTIHARI. -----------------------------(Respondent) **** For the Appellants :- Sri Krishna Kant Singh, Advocate Sri Rakesh Kumar, Advocate Sri Anil Kumar Sinha, Advocate For the Respondents :- Mr. Kumar Priya Ranjan, (CJC) P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD **** Gopal Prasad, J. The appellants have been convicted under Section 20 (b) (ii) (c) and 23 (c) of the N.D.P.S. Act and have been sentenced to undergo rigorous imprisonment for 15 years and fine of Rs.1,25,000/- under Section 20(b) (ii) (c) of the N.D.P.S. Act and in default of payment of the fine of Rs. 2 1,25,000/- all the appellants have been sentenced to undergo rigorous imprisonment of six months and again sentenced to undergo to rigorous imprisonment of 15 years and fine of Rs.1,25,000/- and on non payment of fine to undergo rigorous imprisonment for additional six months and further it has been ordered that both the sentences shall run concurrently. 2. The prosecution case, as alleged, is that the case was initiated on the basis of the complaint by J.K. Ekka, Inspector, Land Customs Station, Raxaul alleging therein that on 04.11.2004 at about 03:00 hours, an information was received through a coded informer that a huge quantity of contraband Ganja has been secreted in secret cavity of the floor of the truck bearing registration no. BR IG-4613. On the said information immediately a team was constituted by the Deputy Commissioner, Land Customs Station, Raxaul and the preventive team along with two independent witnesses rushed towards Ramgarhwa and spotted a truck and on hectic chase apprehended the truck bearing Registration No. BR IG – 4613. The truck was empty and a cavity was found under the floor with iron sheet fastened with nuts and bolts and some colored plastic packets tied with jute were found hidden in the cavity and out of one of the packets the pungent smell of 3 Ganja and thereafter truck was brought to the Customs Station, Raxaul and at Customs Station, the cavity was opened in the presence of the driver and khalasi and the two independent witnesses and 40 plastic packets tied with jute twines were found in the cavity in all weighing about 213 Kg. Thereafter three representation sample of the Ganja was drawn before the witnesses for their chemical examination and Panchnama was drawn and the said sample was sent for chemical examination to Gajipur (U.P.) as well as interrogatory statements were recorded of Sunil Sharma to the effect that the truck was being driven by him since 23.10.2004 and has the knowledge of the cavity but they are not in conscious knowledge of concealment of Ganja in it. However, on the basis of the complaint, cognizance was taken and the charge was framed against the two appellants for offence under Section 20 (b) (ii) (c) of the N.D.P.S. Act as well as Section 23 (c) of the NDPS Act. 3. During the trial, eight witnesses were examined as P.W. 1 Jyotish Kumar Ekka, Inspector of Custom who is the complainant, P.W. 2 Shrikant Chaudhary, Superintendent of Custom and Central Excise, P.W. 3 Manoj Kumar Singh, Inspector Custom Patna, P.W. 4 is Punesh Kumar Inspector Custom, Patna, P.W. 5 Syed Md. Akki, Inspector Custom Patna, P.W. 6 is 4 Hem Nath Jha, P.W. 7 is Devendra Kumar Daradh and P.W. 8 is Hare Kumar Prasad. In addition to these witnesses two witnesses have also been examined as court witness. C.W. No. 1 Krishna Ballabh Prasad and C.W. 2 Hari Shankar Kumar, both are constable. 4. The documentary evidence has been adduced Ext. 1 is the seizure memo, Ext. 2 is the Panchanama, Ext. 3 voluntary statement, Ext. 3/1 voluntary statement of Suman Kumar, Ext. 4 is the arrest memo of Sunil Kumar Ram, Ext. 4/1 is the arrest memo of Suman Kumar Ram, Ext. 5 is original complaint petition, Ext. 6 is interrogatory statement of Suman Kumar, Ext. 6/2, interrogatory statement of Sunil Kumar, Ext. 7, signature of godown In-charge LCS, Raxaul, Ext. 7/2 signature of Superintendent of Police, disposal LCS Raxaul, Ext. 7/2, signature of Judicial Magistrate, Civil Court, Motihari on the certification of disposal of the seized narcotics under Section 52 A of the NDPS Act, Ext. 7/3 is the signature of Inspector, Ext. 7/4 signature of Superintendent of Police LCS Raxaul, 7/5 signature of Commissioner, Ext. 7/6 signature of member, Ext. 7/7 and 7/8 signature of the members and signature of 7/9, 7/10, 7/11, 7/12 and 13 signature of members regarding the destruction of the narcotics seized, Ext. 8 is the 5 chemical report of the chemical examiner to the government by him and Alkaloid works, Gajipur. On the basis of the oral and documentary evidence and hearing submission of the parties, the learned trial court convicted accused and sentenced as mentioned above. 5. Learned counsel for the appellants contends that no independent witness has come forward to prove this seizure. Learned counsel for the appellants has contended that neither the independent witness nor the seizure list witnesses have been examined in this case and the case has been proved only on the ground of police witness. It has further been contended that the search and seizure is also defective. The appellants could have the knowledge of the required articles and the required knowledge about the articles in the truck. 6. Learned Counsel for the State, however, contended that prosecution has proved the case beyond reasonable doubt. Hence, question for consideration is that prosecution has proved the case beyond reasonable doubt. The prosecution case is that on secret information the raid was conducted, contraband seized from the cavity of truck which was seized and 6 sample taken were sealed and sent to Forensic Science Laboratory and on chemical analysis the same was found to be Ganja. 7. P.W. 1 is the informant (Jyotish Kumar Ekka) however, in his evidence he has stated that at about 3.15 A.M he got direction on telephone to come to the office and he came and constituted a raiding party and the said raiding party comprised the informant P.W. 1 Mr. M. K. Daha P.W. 3 Inspectory K. D Prasad not examined, O.P Mandal constable (not examined) B. K. Daftari P. W. 7 Krishna Ballabh Prasad C. W. 1. He has further stated in his evidence that the Superintendent had disclosed about the secrete information that a truck bearing no. BR IG 4613 is to be checked. The truck was chased and caught at the distance after chasing for one Kilometer, brought some material from the cavity of the truck and came to the conclusion that there is Ganja in the cavity of the truck and the truck along with the driver and the khalasi were brought to Raxaul Office and thereafter at Raxaul Office the iron sheet of the floor of the truck which was fitted with nuts and bolts was removed in presence of independent witness and thereafter 40 packets of Ganja which was kept in plastic packets were seized which was found to be 213 Kg. and thereafter the seizure list prepared before 7 the seizure list witness Manoj Kumar and Ranjeet Kumar and has also proved the signature of Manoj Kumar and has proved the seizure list as Ext. 1. He has further stated that at the time of the preparing of the seizure list 25 gr. of sample in three separate packets and was sealed and on each seal packet the signature of independent witnesses and the two accused were taken and was sent for chemical examination to Gajipur Forensic Science Laboratory and he has further stated that thereafter Panchanama was prepared and has identified both the accused persons present in the dock. He has also proved the statement of accused persons under Section 67 of the NDPS Act which were in the writing and signature of the accused persons and the signature of the two independent witnesses. He has further stated in his evidence that he has recorded voluntary statement of Sumant Kumar and Sunil Kumar which were in the writing of the accused persons and also bears his signature which has been marked as Ext. 3 and 3/2 and has also proved complaint petition in his writing and signature. Further in his cross examination he has stated that on the telephonic message of Superintendent of Police he came but no register is maintained regarding the movement. He has further stated that the Superintendent of Police was leading the raiding 8 party. In his cross examination, he has further sated that the accused persons were brought in the truck along with the Khalashi, however, denied the suggestion that both the accused persons are labourer and use to work as labourer at the place of occurrence and hence, from the evidence of the witness it is apparent that this witness was called and was asked to conduct the raid and the raid having been conducted the truck was found to be in possession of Ganja when intercepted and the said Ganja was alleged to have been recovered from the cavity of the vehicle and hence the vehicle was brought at the office and the cavity having been locked by iron sheet with nuts and bolts and hence got open and recovery of 40 packets of Ganja out of which three samples prepared taking Ganja to the extent of about 25 gm. 8. Further P.W. 1 has stated in his evidence that the seizure was made at the office and not at the spot and only three sample prepared out of the Ganja recovered from one packet out of one packet of the Ganja seized whereas it was alleged that 40 packets of Ganja was seized, all measuring worth about 213 Kg. There is nothing in the evidence of this witness to disbelieve his testimony. 9 9. P.W. 2 also supported the prosecution case about the existing of truck and recovery of Ganja and preparation of the seizure list and the identification of the two appellants in court by the witneeses. 10. Further in his cross examination he has stated that there was no relative of the accused persons present there and he has not mentioned the time of the interrogatory statement and denied the suggestion that the seized Ganja was not weighed rather no Ganja was seized and the signature of the accused persons were taken by force. However, except the suggestion there is nothing in the evidence of this witness to disbelieve testimony regarding the recovery of Ganja from the cavity of the truck, preparation of the seizure list and taking sample out of the packet and three such samples have been prepared, having the signature of the witnesses and the accused. 11. P.W. 3 is Manoj Kumar Singh, the Inspector of Custom and he has also supported the prosecution case and recovery of 40 packets of Ganja and denied the suggestion that nothing was recovered from the possession of the accused persons and the accused persons are labourer and since the P.W, 4, 5, 6 and 7 supported the prosecution case about the raiding party having 10 been constituted and chase the truck was caught and recovery of Ganja from the cavity search and seizure list prepared and sample taken. 12. P. W. 8 has proved the certification order for the destruction of the seized article and has proved the entire Ext. 7 series, the signature of the authorities for destruction. Further, the Court Witness No. 1 and 2 have also stated that both are havildar and constable and have also supported the prosecution case about the seizure of the Ganja. It is apparent that the truck was chased and seized and caught and from there it was found that the truck bore Ganja and the said truck was brought to the custom office where the Ganja was recovered by opening the iron sheet which was bolted on the nuts and volts and on the opening of the cavity 40 packets of Ganja found from the cavity of the truck. 13. Learned counsel for the appellants contended that no independent witnesses have been examined, even the seizure list witnesses have not been examined in that case and the case has been proved only by the police witness. However, it is true that the seizure list witness has not been examined in the case. It is well settled that the testimony of witnesses is neither to be doubted nor discarded, merely on the ground that he happens to 11 be an official witness and if their evidence is found to be reliable, their evidence may not be rejected. However, the prosecution case is that the independent witnesses were present at the time of seizure. 14. Learned counsel for the appellants further contended that the seizure list was prepared. The truck was caught on the spot but the sample was not taken at the spot but at the office and hence this is the violation of Section 55 of the NDPS Act and standing instruction issued by NCB and there is probability of manipulation and interpolation. However, having regard to the fact that the truck was seized, apprehended on secret information and a cavity was found and smell of Ganja carrying out of cavity so there was reason to believe that the truck contained the narcotics under a cavity having iron sheet fitted with nuts and bolts and there may not be possibility for opening the cavity or preparation of the seizure list and then the truck was brought in the office. The driver and khalashi of the truck remained on the truck and came on the truck itself and they were all along on the truck from the time they were apprehended till they reached the office and seizure made in their presence and seizure list prepared before then and there is no suggestion in the evidence of the witnesses regarding any 12 interpolation or tampering the articles. Hence the preparation of seizure list at the custom office and not at the spot, under the facts and circumstances, does not appear to cause any prejudice to the prosecution. The trial cannot be said to have vitiated on this account and this view also supported in the decision reported in 2002 (4) SCC page 380 (Khet Singh Vs. Union of India). 15. However, it is stated that 40 packets were seized but out of these 40 packets only three samples were taken from one of the packets and sent for chemical examination. However, 40 packets were sealed, the samples either ought to have been taken from each packets separately or samples taken from each packets be mixed together and then out of the said homogeneous mixture the sample ought to have been taken for sending for chemical examination. However, having regard to the evidence, it is apparent that this procedure has not been adopted. It has come in evidence that out of the seized Ganja a sample was taken in three packets out of one packet of the seized 40 packets alleged Ganja hence question for consideration whether it can be held that all the 40 packets contained Ganja since the procedure has not been adopted for taking the sample as per the 13 instruction or standing orders for necessity. However, it is true that the said instruction has got no statutory force but the question is whether there is a prejudice, however, on examination of material from one packet it may be unfair to hold that each packet contained Ganja and the procedure not adopted may have a matter of grave concern. However, having regard to the fact that the sample was taken from only one packet out of the seized 40 packets which was sent for chemical examination and a report was received that the said article was Ganja and hence only one packet seized out of 40 packets can reasonably be held to have contained Ganja. There is no possibility of re-check as all the 40 packets have been reported to have been destroyed by the authorities and hence if a reasonable view is taken, only one packet has been proved to contain Ganja out of 40 seized packets. However, the 40 packets proved to contain 213 Kg. Ganja and then, on average basis, one packet Ganja only contained 5 to 6 Kg. Ganja and hence the prosecution could have been only for 4 to 5 Kg. Ganja in the possession of the appellant and hence the conviction and sentence of Section 20 (b) (ii) (c) and 23 (c) is not sustainable in eye of law. 14 16. However, having regard to the facts that the prosecution has been able to prove only one packet Ganja out of which a sample taken and proved to be a Ganja and hence only 4 to 5 Kg of the Ganja said to have been proved in possession of the appellants and hence taking into consideration the facts and circumstances the order of conviction and sentence under Section 20 (b) (ii) (c) and 23 (c) is not sustainable and is converted to conviction under Section 20 (b) (ii) (b) and 23 (b) of the NDPS Act. However, under Section 20 (b) (ii) (b) and 23 (b) the sentence is only for a period up to 10 years and fine up to Rs.1,00000/- is provided and hence I am of the considered opinion that since the accused are in jail since 04.11.2004 and hence, the end of justice shall be met by sentencing the accuse for the period already undergone and fine of Rs.25,000/- each and if the appellants fail to pay the fine, they shall undergo rigorous imprisonment for further period of six months each and hence the appeal is partially allowed. (Gopal Prasad, J.) Shyam Kishore Sharma, J. (Shyam Kishore Sharma, J.) Patna High Court, Patna Dated 20th May, 2010 N.A.F.R./Kundan