Criminal Appeal (SJ) No.822 OF 2009 ---------- Against the judgment and order of conviction and sentence dated 5th September, 2009 and 8th September, 2009 passed by Shri Vijay Kant Mishra, 7th Additional District & Sessions Judge-cum- Special Judge, NDPS Act, East Champaran at Motihari. ---------- Rajendra Prasad, son of Late Navjeet Prasad, resident of Mohalla – Punaichak, Police station – Krishnapuri, District – Patna. …………… Appellant Versus The State of Bihar through Inspector, Customs, Motihari ......……… Respondent --------- For the Appellant : Shree Sandeep Kumar, Advocate For the Respondent : Shree Shiv Kumar, CGC ---------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA -------- Dharnidhar Jha, J. The solitary appellant Rajendra Prasad was tried by the learned 7th Additional Sessions Judge-cum-Special Judge, NDPS Act, East Champaran at Motihari in NDPS Case no. 101 of 2006 by being indicted of committing offence under sections 20(b)(ii)( c ) and 23( c ) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘Act’) for allegedly being found in possession of 300 Kgs. ganja while he was driving truck bearing registration number BR-1C -7271. The appellant was found guilty of committing the offence only under section 20(b)(ii) ( c ) of the Act while he was acquitted of the charge under section 23 ( c ) of the Act and after being heard on sentence, was directed to 2 suffer rigorous imprisonment for ten years and also to pay a fine of rupees one lac, else, to suffer imprisonment for one year. The appellant has appealed against the judgment of conviction dated 5th day of September, 2009 and order of sentence dated 8.9.2009. 2. The prosecution story was that P.W. 1 who was the Inspector of Customs, Motihari, had received some secret information that the above noted truck was ferrying some contraband article. He along with witnesses who have been examined in the case including P.W. 5 Prasant Kumar Singh, who was the Superintendent of Customs on the relevant date, reached at a particular place to wait for the truck, which arrived and which was signaled to stop and the appellant was asked to remove the canvas which was covering the consignment. It was revealed that some packets were there amidst the containers of edible oil and, as such, the truck was brought to the customs office where in presence of the witnesses, the search was made and it was found that 18 packets were loaded in addition to the consignment of edible oil, which was containing 300 Kgs. of ganja. The recovery memo-cum-seizure memo (Ext. 1) was prepared and the Panchnama was also prepared. The accused was also questioned as may appear from Ext. 4 on the recovery of 300 Kgs. ganja and had revealed that the present appellant was pointing out that he was unaware of the contents of the packets which had been loaded somewhere near Ramgarhwa for being carried to Muzaffarpur. It was stated that three samples each weighing 25 grams were drawn and 3 properly sealed with the test seal which appears on Ext. 2, which also contained the report of the Chemical Analyst of Customs, Chemical Laboratory, Calcutta, as per which, the sampled article was ganja. P.W. 1, thereafter, filed the complaint which went to trial and ultimately, the appellant was found guilty and sentenced as aforesaid. 3. While arguing the appeal, the learned counsel for the appellant has raised a very limited question. It was urged that even assuming that there were 18 packets, though packets were not produced on the claim of the same being destroyed as per the report of destruction (Ext. 9), it remains still in doubt that all the 18 packets were containing ganja. It was contended in the above context that the evidence was completely lacking as regards contents of each and every packet besides the individual weight of the packets. It was contended that there was clear evidence that sample was drawn only out of one packet and again that appears affecting adversely the proof of charges that the total weight of 300 Kgs were in contents and substance ganja. It was, as such, contended that the very conviction and the sentence which was passed against the appellant, was not sustainable and was against the weight of evidence available on record. 4. It is true that all the witnesses, except P.W. 11, who is a witness of formal character had produced customs register, have consistently stated that the truck in question was searched and 4 besides the edible oil contained in 500 containers, additional consignment of 18 packets were also recovered from it but when it comes to the verification of the contents of each and every packet eighteen in number, the evidence appears quite deficient. P.W. 1 has not stated that the eighteen packets were containing ganja except that he, in his paragraph 18, has stated that the sample was drawn only out of one packet. P.W. 2 does not say that any packet was opened and the content thereof was verified or the samples of the contents were taken out. What he says in paragraph 14 is that he cannot say as to from which packet or packets the samples were drawn. P.W. 3 merely says that only one packet was opened and it was found that the contents thereof was ganja. So far as P.W. 4 is concerned, he said that two-four packets of ganja were opened and repacked after finding that the contents of those packets were ganja. P.W. 5 in paragraph 7 stated that only one packet was opened and it was found that the contents thereof was ganja. As regards the other witnesses, they are either silent on the number of packets, which were looked into and have not stated that any packet was opened for verifying the contents thereof. Thus, it remains in doubt that the eighteen packets which were allegedly containing ganja, had been unsealed or unpacked so as to verifying the veracity of their contents and it was revealed that indeed 18 packets were containing ganja, the total weight of which was 300 Kgs. There might be consistency in evidence as regards the weight but when the very contents of all 18 5 packets has not been testified to by the witnesses, then the quantity of recovered article in absence of the nature of substance loses its importance as regards the substance being either a narcotic drug or a psychotropic substance or a prohibited material. 5. However, after going through the evidence of witnesses, what remains established by probability is that at least one packet was opened and that packet was definitely containing ganja. This also appears established by the evidence of P.W. 1 in paragraph 18 that he had drawn some sample of it about which another limb of argument was formulated by the learned counsel for the appellant. It was contended that as per the complaint petition, three samples, each weighing 25 grms. were drawn and properly sealed to be dispatched to the Chemical Analyst but the laboratory was receiving 31.2 grms. along with the poly-bag and if the story of three samples each of 25 grms. is to be believed, then the destruction must not be of 300 Kgs of ganja. This argument appears quite substantial on the face of it, but when one considers that the date of occurrence was 14.10.2006 and the destruction was being carried out by Ext. 9 on 31st October, 2006, the court has to consider also the environmental situation prevailing at that time, particularly, in the region of Champaran, which is inhibited by dense forest and is known to record high rains. Besides, the region is ramified by chains of channels, ponds and rives, making the environment quite humid. The environmental moisture must have seeped into the store which could have 6 compensated the weight of the contraband and as such, there might not be such difference in between the weights which were taken at the time of seizure and at the time of destruction. More over, the receipt of 31.2 grms. of sampled articles could also be appreciated by the fact that it was bearing the packaging material besides the article which could have been used for putting a seal upon the packet. The laboratory has very clearly noted that the total weight along with the packet was 32.2. grams. It is not mentioned as to what was the net weight of the sampled articles. As such, that variance, which was picked up by the learned counsel out of the document prepared by the prosecution or the laboratory, appears of no consequence. 6. The contention was also raised that section 42 of the Act requires that any prior information, if received, has to be reduced into writing and the contents thereof has to be passed on to the superior authority so as to obtaining an authorization for entering into any conveyance, building, place, etc. and thereafter to make a search and seizure of any article. That part of the provision relates to an officer, in my considered view, who has not been authorized to make an entry and search of the premises. I am of the view, and I have expressed that view in a few more judgments, that the very provision of section 42 of the Act by putting down the exception regarding the class of employees of different departments who could not enter into to conduct search and make a recovery, the legislature has, by the very provision of section 42, authorized some class of 7 officers of certain departments with that power. So, if the officer was of that class holding a particular post of a particular rank who is permitted by the very provision of section 42 of the Act, then there could not be any need of seeking authorization of any superior officer of his as the excepted rank of employees, like, a peon or a sepoy or a constable is only prohibited by that particular provision to exercise the power under section 42 of the Act. In addition to that, even if there could be a contention, as was argued by the learned counsel, then it could not be said to be mandatory on account of the provision of sub-section (2) of section 42 of the Act as it makes it permissible for the officer who has entered into a premise/vessels, etc to search it or to make a recovery, then he should comply with the provision even after 72 hours of confirming the above facts. More over, when I was considering the evidence of P.W. 5, who was the controlling superior officer on account of being the Superintendent of Customs, he has stated in paragraph 19 that he had been duly informed by P.W. 1 and he was also well in know of the facts and as such, no information was reduced into writing. In my considered view, if the evidence in paragraph 19 referred to above is not the compliance of the provision of section 42 Proviso, then its compliance in most of the parts raises the disability which was argued by the learned counsel for the appellant. 7. The evidence of destruction Ext. 11 series along with the certification of search and inventory Ext. 9 are evidence of 8 primary nature by virtue of section 52A(4) of the Act. They indicate that section 52A and on that account section 55 of the Act were duly complied with and this clearly indicates that there could not be any doubt about the recovery of ganja from the truck, which was driven by the appellant. 8. However, I have already held at some early part of the judgment that quantity of ganja was 300 Kgs., remains in doubt, because the contents of each and every of eighteen packets appeared not verified nor the samples were drawn from each of them. In the light of that very evidence, what this court finds is that this court can safely presume that ganja was of minimum quantity and the appellant was found possessing the minimum quantity of ganja and on that presumption the sentence passed upon the appellant may require to be considered. 9. Section 21(a) of the Act indicates that where the contraband involves small quantity, the sentence might be imprisonment for a term which may extend to six months or with fine which may extend to ten thousand rupees. In cases which are covered by section 21(a) of the Act, both the sentences of imprisonment and fine have never to be imposed; the sentence either has to be substantial imprisonment of a term up to six months or it could only be of fine. Because, the appellant has remained in custody for quite some period, I reduce his sentence up to six months and the nature thereof shall be rigorous. 9 10. Having said the above, the appeal is dismissed with the modification in sentence. The appellant has remained in custody for quite some years and he is still continuing there. He shall be released forthwith if not wanted in any other case on account of his sentence under section 20(b)(ii) of the Act being converted to one under section 21(a) of the Act. (Dharnidhar Jha, J.) Patna High Court, The 17th May, 2011, NAFR/Anil/