1 CRIMINAL APPEAL No.789 OF 2007 - - - - Against the judgment of conviction and order of sentence dated 17.5. 2007 and 24.5.2007, respectively, passed by Ist Additional Sessions Judge-cum-Special Judge( N.D.P.S. Act), Buxar, in N.D.P.S.Case No.17 of 2003 arising out of Dumraon P. S. Case No. 95 of 2003. - - - - ASHOK RAI … … Appellant Versus STATE OF BIHAR … … Respondent With CR. APP (DB) No.790 of 2007 1. RAMAYAN PANERI 2. Md. Kyamuddin Ansari … … Appellants Versus STATE OF BIHAR … … Respondent For the appellants: Shri Kanhaiya Prasad Singh, Senior Advocate Shri Bikram Deo Singh, Advocate Shri Atal Bihari, Advocate Shri Md. Ataul Haque, Advocate For the State: Shri Awhini Kumar Sinha, Addl.Public Prosecutor - - - - P R E S E N T THE HON'BLE Shri JUSTICE DHARNIDHAR JHA THE HON'BLE Shri JUSTICE RAKESH KUMAR - - - - Dharnidhar Jha & Rakesh Kumar-JJ.- The two appeals arise out of the judgment of conviction and order of sentence dated 17.5.2007 and 24.5.2007, respectively, passed by the learned Special Judge( N.D.P.S. Act) in N.D.P.S.Case No.17 of 2003 by which he held the three appellants guilty of committing different offences under N.D.P.S. Act. Appellant Ashok Rai was found guilty under Section 20(i)(b) of the Narcotic Drugs and Psychotropic Substances Act and was directed to suffer rigorous imprisonment for 8 years 2 and to pay a fine of Rs. 1,00,000/-. He was also found guilty of committing offence under Section 27(a) of the N.D.P.S. Act and was ordered to suffer rigorous imprisonment for 12 years and to pay a fine of Rs. 1,25,000/-. In default of payment of fine, appellant Ashok Rai was directed to suffer rigorous imprisonment for five years. As regards the other two appellants, namely, Ramayan Paneri and Md. Kyamuddin Ansari, they were found guilty under Section 21(i)(b) of the N.D.P.S. Act and each of them was directed to suffer rigorous imprisonment for six years and to pay a fine of Rs. 50,000/- each and in default of payment of fine to suffer further rigorous imprisonment for 5 years each. The above named appellants have questioned the propriety and correctness of the judgment and order of sentence passed against them. 2. The prosecution has been initiated on the written report of the Officer-in-charge of Dumraon Police Station( P.W. 1), S.I. Piranjit Singh in which he stated that he received a confidential note from the Superintendent of Police, Buxar, pointing out to him that one Ashok Rai and others were engaged in possessing and sale of narcotic substance through his “Ankit Medical Hall” situate at village Pratapsagar. Accordingly, P.W.1, S.I. Piranjit Singh, formed a raiding party and issued direction to the Officer-in- 3 charge of Dumraon Police Station, Shri Ramagya Rai, to remain present with police force at a particular place. The informant along with his party of police force came at the place of occurrence and found S.I. Ramagya Rai already present at the pointed place. Thereafter, the informant apprised the two seizure list witnesses, namely, Mritunjay Rai( P.W. 2) and P.W. 4 Rajiv Kumar Singh about the purpose of the informant in the light of the official communication of the Superintendent of Police, Buxar, and taking them with him and the police party he reached “Ankit Medical Hall” situated at N.H. 84 near MethodiX Hospital. The informant alleged that he saw two persons sitting there and one person running out of the place of occurrence. The two persons on being questioned, gave their names as Ramayan Paneri and Md. Kyamuddin Ansari and the name of the man who had just left out the shop was pointed out by them as Ashok Rai( appellant). The two appellants Ramayan Paneri and Md. Kyamuddin Ansari described themselves to the informant as the salesmen of the shop. 3. The informant alleged that he pointed out to the two appellants, namely, Ramayan Paneri and Md. Kyamuddin Ansari that they in league with the owner of the shop, namely, Ashok Rai, were indulging in sale and possession of heroin and, as such, the informant and other police personnel had to make search of the shop 4 and if they so required the same could be made in presence of a Gazetted Officer or a Magistrate. The informant further stated that he read out the authorization letter issued to him to the two appellants and on being told by them that they had complete faith in the police force, the premises was searched in presence of the seizure list witnesses. The two appellants also gave in writing their no objection to the search of the place and, accordingly, the police searched the premises. No recovery was made of any incriminating article from the possession of appellant Ramayan Paneri and Md. Kyamuddin Ansari. But on search of the Medical Hall, a polythene packet was found concealed after being wrapped in a piece of news paper in one of the drawers of the sales counter which packet was found containing heroin-like-substance. A telephone diary and Rs. 700/- in cash were also recovered. On being asked to produce any authorization for possessing heroin, the two appellants could not do so and appellant Ramayan Paneri on being questioned said that he and appellant Md. Kyamuddin Ansari were engaged in sale and purchase of heroin in league with Shashi Kant Rai and appellant Ashok Rai. They further stated that the seized heroin had been brought by appellant Ashok Rai and acquitted accused Shashi Kant 5 Rai and they had asked the two appellants to sell it to the purchasers. 4. The seized substance was weighed and it was found weighing 150 grams contained in two packets; one containing 100 grams and the other 50 grams. The sampling was done by marking the containers as per description in the F.I.R. and the remaining part of the seized substance was sealed in different container which was signed by the accused persons, the witnesses and also by the Officer-in-charge of Dumraon Police Station. 5. On the basis of the written report of P.W.1, the F.I.R. of the case( Ext.6) was registered and the investigation was taken up by S.I. Ramagya Rai( P.W.6) who has also stated to the above facts as narrated above and further stated about the sampling and seizure of the recovered article by marking the container, as may appear from his evidence at page 33 of the Paper Book. P.W. 6 has stated that he also questioned the accused persons and they stated that they were in the trade of sale and purchase of heroin along with appellant Ashok Rai, his brother Guddu Rai and another accused Shashi Kant Rai. It was stated that they used to pool up their shares in purchase of the substance and they used to receive the profits as per their shares in the capital. 6 6. P.W. 6 inspected the place of occurrence and wrote the description thereof in the case diary which has been indicated by him in his evidence at page 34 of the Paper Book. He recorded the statement of the witnesses and sent the sampled article for chemical examination to the Forensic Science Laboratory. He also forwarded the accused persons to the court for being remanded. He handed over the charge of investigation to P.W. 8 Chandeshwari Prasad Yadav who submitted charge sheet in the case and, accordingly, the appellants were put on trial. 7. The defence of the appellant Ashok Rai was that he was not the owner of the Medical Hall which is a cock and bull story so as to implicating him falsely. He has further taken a plea that there is no evidence establishing his identity either as the owner of the shop or as the person who was found by the police escaping from the shop. The two appellants, namely, Ramayan Paneri and Md. Kyamuddin Ansari have taken a defence equally of non-participation and further that they have been falsely implicated merely because they were at the shop in connection with any other purpose. It was also the defence of the two appellants that, in fact, there was no recovery from their possession. 8. In support of its case the prosecution examined nine witnesses during course of the trial. 7 P.W. 1 Piranjit Singh is the informant of the case and he has supported the case in his evidence also. P.W. 2 Mritunjay Rai is a witness to search and seizure, who was declared hostile because he stated that he was made to sign a plain paper in spite of having stated on oath that his signature appeared on the seizure memo as also on the sampling packets which were marked S1 and S2 by P.W. 1. The other seizure witness Rajiv Kumar Singh (P.W. 4) also does not appear supporting the search of the Medical Hall and seizure therefrom and, as such, he was also declared hostile. P.W.4 has stated that the signature on the seizure memo was his. The two witnesses, namely, P.W. 3 Krishna Goswami and P.W. 5 Hare Ram Singh were tendered. P.W.7 is Satya Narain Rai who has given evidence on the ownership of the shop and the status of the two appellants Ramayan paneri and Md.Kyamuddin Ansari and according to his evidence the shop belonged to appellant Ashok Rai and appellants Ramayan Paneri and Md. Kyamuddin Ansari were employed there as salesmen. P.W. 9 Ram Chandra Rai is the landlord of the premises which consists of a series of shops and one of the shops was let out by him to appellant Ashok Rai by Ext. 12, an agreement creating tenancy which is dated 1.11.2001. The Forensic Science Laboratory’s report has been marked Ext.11 and that indicated that the packets S1 and S2 which were 8 received by the Forensic Science Laboratory from S.I.Ramgya Rai on 26.7.2003 contained heroin. 9. The defence examined a solitary witness Mahendra Singh who has given evidence that appellant Ashok Rai was residing in Bermo since last 15-16 years and was dealing in coal there and that he was never seen during those periods at villages Pratapsagar and Chilhari. 10. On consideration of the above evidence, the learned Special Judge recorded the finding of guilt and passed the sentences upon the appellants by the impugned judgment. 11. Shri Kanhaiya Prasad Singh, learned Senior counsel appearing for appellant Ashok Rai has submitted that there was no evidence on record to connect the appellant with the ownership of the premises which was searched and from which, allegedly, 150 grams of heroin was recovered by P.W. 1 and others. It was contended that in absence of the evidence of search witnesses that the search and seizure was made in their presence the Court ought not to have recorded a finding of recovery from the possession of appellant Ashok Rai or, for that matter, from any of the three appellants. It was contended that appellant Ashok Rai denied the ownership of the premises in his statement under Section 313 Cr. P.C. and no T.I. Parade was held or no other evidence was attempted to be collected as regards 9 establishing the identity of appellant Ashok Rai who has been implicated on the confessional statements of two co-accused persons which evidence may not be acceptable in law. It was next contended that even if it was accepted that the appellant Ashok Rai had obtained the premises under some terms of tenancy it remained still to be proved whether the appellant had really committed the offence for which he stood convicted. Learned Senior counsel took us through some part of the evidence in support of his above contentions. Shri Singh also challenged the veracity of Ext.12 and branded it as a fake and fabricated document, probably, created for implicating the appellant Ashok Rai and advanced many contentions by reading out and showing the document Ext. 12 to us. 12. Shri Bikramdeo Sigh, learned counsel appearing for appellants Ramayan Penari submitted that mere presence of the appellant along with appellant Md. Kyamuddin Ansari may not be sufficient indicator of the fact that they were hands-in-glove with appellant Ashok Rai in commission of the offence for which they have been found guilty and sentenced. It was contended that there is complete lack of evidence as regards the commission of the offence as the material was recovered from the drawer of the sales counter of the shop which could never be said to be belonging to either of the 10 two appellants. It was contended, as such, that not only it stares in face as regards the finding of the court below on question of conscious possession of two appellants Ramayan Paneri and Kyamuddin Ansari rendering the findings of guilt but also appears completely erroneous rendering the conviction as ill- founded. Same was the contention of learned counsel appearing for appellant Md. Kyamuddin Ansari, namely, Shri Md.Ataul Haque, Advocate. 13. Learned Additional Public Prosecutor Shri Ashwini Kumar Sinha has brought into our notice some important aspects of the case, like, the acceptance of the two seizure list witnesses of their signatures on the seizure memo and not denying it as not theirs and thereby submitted by citing a judgment of the Supreme Court reported in (2006) 2 S.C.C.(Cri.) 444 Surender Singh Vs. State of Haryana that an admission of the seizure witnesses that the signatures on the seizure memo were theirs could be sufficient to hold that the search and seizure were witnessed by them and the document was prepared in their presence. It was contended further that P.W. 9 Ram Chandra Rai, the landlord, who executed Ext. 12, has stated in paragraph 2 of his evidence that the premises which was obtained by appellant Ashok Rai under a term of tenancy from him was being utilized by him for running a Medical 11 Shop named and styled as M/s Ankit Medical Hall. It was contended that this line of evidence has not been challenged by the defence. It was further contended that Ext.12 is an agreement creating tenancy for two years and there was no requirement in law that tenancy agreement be registered and the provision of Section 17 of the Registration Act was not attracted. It was contended that other witnesses, like, P.W.7 Satya Narain Rai is one of the co-villagers of the appellant Ashok Rai and has stated that the proprietor of Ankit Medical Hall was his own fell-villager, namely, Ashok Rai and further that he knew appellants Ramayan Paneri and Md. Kyamuddin Ansari who were the employees of Ashok Rai. P.W.7 has further stated in paragraph 2 of his evidence that they have obtained huge fortunes and owned descent houses besides appellant Ashok Rai owned a four wheeler. It was contended, as such, that there was sufficient evidence connecting the appellants Ashok Rai and other two with the affair of M/s Ankit Medical Hall. 14. Considering that a serious challenge has been set up by learned Senior counsel appearing for the appellant Ashok Rai as regards the proprietorship of M/s Ankit Medical Hall, we want, firstly, to decide it in the light of the evidence. As may appear from the evidence of P.W. 9 Ram Chandra Rai and Ext.12, a 12 tenancy was created in favour of Ashok Kr. Singh son of Albela Singh. A contention was raised by Shri Kanhaiya Prasad Singh, learned Senior counsel, that Ashok Kr. Singh is not the name of appellant Ashok Rai who may be a different person but when we turn to P.W.9, paragraph 3, which is the cross examination part of his evidence what we find is that Chilhari is a very big village and it was resided chiefly by people belonging to Rajput caste. The witness has stated that they had both Singh and Rai titles. This evidence has not been challenged, as pointed out just now which fact has been introduced by the cross-examination of the witness. So it appears as an admission of the appellant Ashok Rai who stands described as Ashok Rai, that he may be described as Ashok Kr. Singh. We have perused the memo of appeal filed by the present appellant Ashok Rai and, specially, the title head of the memo of appeal which describes the appellant as Ashok Rai son of Albela Rai. Thus, we do not have any confusion in holding that Ashok Rai appellant may also be described as Ashok Singh or Ashok Kumar Singh who could be described again as son of Albela Rai or Albela Singh. The village of residence is the same as has been described in Ext.12 and the memo of appeal and further supports to the above comes from the Statement of the appellant under Section 313 Cr. P.C. His caste has also been described 13 by him in the bilateral document Ext.12 which is an agreement creating tenancy. That caste tallied with the evidence of P.W. 9 and we do not have any hesitation in holding that appellant Ashok Rai was one of the parties to the document creating tenancy in his favour. We also do not have any hesitation in holding, in the light of the evidence of P.Ws. 1,7 and 6, that the premises which was searched was Ankit Medical Hall and that belonged to the present appellant Ashok Rai. 15. We have already referred to the evidence of different witnesses in a very precise manner and, specially, after considering the evidence of P.W.7 Satya Narain Rai, we do not have any hesitation in holding that the two appellants, namely, Ramayan Paneri and Md. Kyamuddin Ansari were the sales men of appellant Ashok Rai, employed by him that medical hall. 16. This brings us to consider whether any search was made and any substance was seized and in token thereof was any document prepared by the raiding party? The seizure list witnesses have attempted to ditch the prosecution by stating that they were made to sign a plain paper or in the alternative as is submitted by P.W. 4 no search was conducted or seizure memo prepared in his presence. Both P.Ws. 2 and 4 have stated that signatures which were appearing on Ext.4 were their respective ones. P.W. 2 Mritunjay Rai has 14 admitted that sampling packet also bore his signature but what he has explained is that he put his signature under the pressure of the police. We are not inclined to accept that submission of a witness of the category of P.Ws. 2 and 4 in the light of the Supreme Court judgment referred to us by the learned Additional Public Prosecutor in the case of Surender Singh (Supra). That case was of robbery and dacoity and a recovery of Rs. 60,000/- had been made and the seizure list witnesses while admitting their signatures on the seizure memo had made similar statement that they had either been forced to put their signatures upon a plain paper or to sign it as appears the facts stated before us by P.Ws. 2 and 4. Here, by reading the admission of the seizure witnesses about the genuineness of the signatures, the contention that no search was conducted and seizure made and in turn no document was prepared in their presence could not be accepted. We take the same view, as was taken by the Apex Court in Surender Singh( Supra). 17. There is no reason for the Investigating Officer to implicate innocent persons, like, the three appellants. Why the police could be enthusiastic in implicating innocent persons instead of protecting their lives and liberties as per Rule 5 of the Bihar Police Manual? We do not see any such element which 15 could have given a flash into our mind that the informant or any one could be bent upon implicating innocent persons. Recovery, as per the claim of the witnesses P.Ws. 1 and 6 as also from the document in that behalf Ext.4, appears being made from the sales counter, from one of its drawers. The description about the concealment of the packets clearly indicates that it could be imparting knowledge both to the owner as also to the persons who were acting as sales men. The evidence of P.Ws.1 and 6 and the document Ext.4 indicate that the substance was put in a poly packet and thereafter was wrapped in a piece of a news paper and thereafter was concealed in a remote corner of an unsuspecting drawer. Conscious possession could be indicated from the consciousness about the manner of handing over the article to someone and if someone is concealing the articles so as to avoiding public gauge, as in the present case. The very manner of concealment may impart a knowledge to the concealor and thereby raises clear inference of conscious possession. That appears automatically coming out from the facts of the present case also. 18. The evidence of P.W.7 shows that the appellants have acquired good fortunes on account of indulging in the illegal trade of narcotic substance/trade. The witness has stated that they own decent houses and 16 appellant Ashok Rai also owns a four wheeler. This appears to us sufficient evidence to support conviction of appellant Ashok Rai under Section 27(a) of the N.D.P.S.Act. 19. It is true that appellant Ashok Rai was not put on T.I. Parade. It is also true that the other two appellants had named him as the person who had ran away. We do not see any reason as to why the two will drop only his name as a person to have left out, had he not left the shop. There is sufficient reason for us to believe that appellant Ashok Rai had left the shop because he was the owner of the shop as also because he was running the business high, the racket himself. He knew the consequences of remaining present and, as such, evaded the place when the police reached there. The evidence is sufficient to indicate that appellants Ashok Rai was the person who left the shop and even if we discard that part of the story, there is evidence sufficient to convince us that he had the definite knowledge about concealment and the search of the substance recovered which ultimately was found to be heroin, a narcotic substance, on analysis by the Forensic Science Laboratory, as may appear from Ext. 11. 20. In the light of the discussions of the evidence made by us just now, we are convinced that the 17 judgment of conviction and order of sentence passed by the learned Special Judge are perfectly justified on the facts of the case and no finding appears erroneously recorded. 21. In the result, we do no find any merits in these three appeals and they are hereby dismissed. ( Dharnidhar Jha, J.) ( Rakesh Kumar, J.) Patna High Court The 22nd January, 2010 Kanth/N.A.F.R.