1 Criminal Appeal (SJ) No.306 OF 2008 - - - - Against the judgment of conviction and order of sentence dated 24.1.2008 and 28.1.2008, respectively, passed by 5th Additional Sessions Judge, Muzaffarpur, in Custom Case No.126 of 2005/ Tr. No. 34 of 2006/Tr. No. 6 of 2008. - - - - MUNESHWAR THAKUR, son of Sri Nathuni Thakur, resident of Village Parsona, Police Station Gopalpur, District West Champaran … … Appellant Versus THE UNION OF INDIA … … Respondent With CR. APP (SJ) No.315 of 2008 BIJALI MAHTO son of late Shiv Bachan Mahto, resident of village Parsona, Police Station Gopalpur, District West Champaran … … Appellant Versus The Union of India … … Respondent With CR. APP (SJ) No.1034 of 2010 NARAYAN SAH, son of Nathuni Sah, resident of Vilalge Parsauna, Police Station Gopalpur,District West Champaran … … Appellant Versus THE UNION OF INDIA … … Respondent For the appellants: M/s Sanjeev Kumar No.1 ( in all the appeals) Chandra Mohan Jha, Advocates For the Union of India: Shri Sahvind Kumar Sharma,CGC (in all the appeals) - - - - P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha,J.- The three appeals arise out of the judgment of conviction passed by the learned 5th Additional Sessions Judge-cum-Special Judge, Muzaffarpur, in Customs Case No.126 of 2005(Tr. No. 34 of 2006/Tr. No. 6 of 2008) dated 24.1.2008 2 by which the three appellants were found guilty of committing the offence punishable under Section 20(b) (II)(c )of the Narcotic Drugs and Psychotropic Substances Act( for short, ‘the Act’). After hearing the appellants on sentence on 28.1.2008, the learned trial Judge directed each of the appellants to undergo rigorous imprisonment for ten years as also to pay a fine of rupees one lac, else, to suffer rigorous imprisonment for a further period of two years. The three appellants were charged together and, as such, were tried together, but they have preferred separate appeal to challenge their individual conviction and sentence passed upon each of them. 2. The case was instituted on a complaint petition under the signature of P.W. 1 Shri S.N. Jha, who on 18.1.2005 was the Inspector, Customs Division, Muzaffarpur. He was stating in his petition of complaint that the Preventive Team had reached a particular Dhaba as indicated in the complaint petition for preventive checking on 18.1.2005. At about 23.45 hours, i.e., 11.45 P.M. a bus bearing registration No. BR-06P/8186 was seen coming from Bettiah for going to Patna and that was checked at Lasgaripur near Bhardwaj 3 Dhaba at N.H.28. Three passengers sitting in the bus did not have any luggage and they were suspected to be carriers of some contraband articles and, accordingly, a couple of persons present at the Dhaba were requested to associate themselves with the search of the three persons. They were brought down from the bus and further brought to the Customs Office, Muzaffarpur Division. They were disclosing their identities upon which the Inspector, Customs, P.W.1, pointed out to them that if they so desired, they may be searched in presence of any Gazetted Officer or a Magistrate. The three persons agreed to be searched before a Gazetted Officer and, accordingly, they were brought to Customs Divisional Office before Shri B.K.Sinha(not examined), who was the Superintendent of Customs Division, Muzaffarpur, and on search appellant Narayan sah was found carrying two packets strapped up to his body under his garments which appeared containing 2 K.Gs of Charas. Appellant Bijali Mahto was found similarly carrying six such packets and total weight of charas from those packets recovered from the possession of Bijali Mahto was 4 K.G. On search of Muneshwar Thakur, two packets were recovered from him and 4 the total weight of charas which was kept in two packets was 2 K.Gs. Accordingly, search and seizure memo was prepared and, thereafter, a panchnamaa was prepared in presence of Sanjay Kumar(not examined) and Shailendra Chaudhary, (P.W.5). The panchnama was witnessed by the two above named persons. Besides in token of correctness of the statement contained therein the three appellants were also putting their thumb impressions on it. Subsequently, the sampling of the seized articles was done and the samples were drawn from the recovered articles each from the three appellants and sent to the Government Opium and Alkaloid Works, Ghazipur(U.P.) for chemical analysis and Ext.4 series are the reports submitted by the Chemical Examiner of the Government Opium and Alkaloid Works, Ghazipur, indicating that the recovered article was charas. 3. The written confessional statements were made by each of the appellants in presence of the two persons, namely, Shailendra Chaudhary(P.W.5) and Sanjay Kumar(not examined) and those have been marked Exts.2, 2/1 and 2/2, respectively. 4. The learned trial Judge, after considering the evidence of the five witnesses and the 5 documents which have been just referred to, came to the conclusion that the offence under which the three appellants were found guilty was duly committed by them and inflicted the sentence pointed out at the very out set of the present judgment. 5. While arguing the appeal, it was contended that the mandatory provision of Section 50 of the Act was not complied with and the seizure memo appears suspect inasmuch as the copy thereof was never made over to any of the three appellants. It was further contended that the Officer before whom the appellants were taken, Shri B.K.Singh, who was posted at the Custom Divisional Office, Muzaffarpur was also not examined and, as such, there was a lurking doubt that the search was really made in presence of Shri B.K.Singh and anything was recovered from the possession of the three appellants. It was, lastly, contended that there was no acceptable reason as to why the three appellants were moved out from the place at which they were brought down from the bus for being taken to the Customs Divisional Office, Muzsaffarpur and for getting themselves searched and it appears that in order to creating defence so as to justifying the search of the three 6 appellants in the Customs Office such story had been developed. It was, lastly, contended that no search or recovery was made from any of the three appellants. 6. Learned Additional Public Prosecutor appearing on behalf of the State and learned counsel appearing on behalf of the Customs Department in support of the judgment could not satisfy me on the absence of explanation for non- examination of Shri B.K.Singh and further could not point out to me as to what was the evidence on seizure by P.W.1 from each of the appellants and the manner in which the same was dispatched from the office of the Customs Department to the Government Opium and Alkaloid Works, Ghazipur(U.P.). 7. P.W.1 is the person who was the complainant of the case and appears heading the team which was searching the bus bearing registrar no. BR-06P-8186. He has supported his statement made in the complaint petition, but when I consider the evidence of P.W. 5 Shri Shailendra Chaudhary, who was the practicing Advocate at Muzaffarpur and whose evidence could be getting credence on account of the witness belonging to a profession which has its own 7 respect not only in the eyes of legal fraternity but also in the public in general, I could not simply appreciate the prosecution case. The complainant was pointing out in his petition of complaint that three persons were brought down from the bus and two persons present at the Dhaba were requested to associate themselves with the search of the persons of the appellants which included P.W. 5 who has, on the other hand, deposed that he had gone to the Customs Office and there he was requested to witness the search. Thus, he does not support the statement of the complainant that he was requested by the complainant to associate himself with search and seizure to be carried out by him. Thus, the very prosecution story contained in the complaint petition that two persons present at a particular Dhaba, were requested to associate themselves with the search does not appear true. It is true that the name of Shailendra Chaudhary appears in the column of witnesses but on account of the reason just noted, I have serious reservation in accepting his claim that he was present at the Customs office or near the Dhaba. Thus, the reason for the presence of P.W.5 as indicated appears quite different and not consistent with 8 that stated in the complaint petition regarding the claim about his presence and that appears quite doubtful 8. The next defect which I find in the persecution story is the non-compliance with some of the provisions of the Act. We have series of decisions coming both from the Supreme Court as also from this Court that if the provision could not be mandatory and if it could simply be obligatory and the burden of proof is on the prosecution, then the impact of non-compliance of such obligatory provisions could be that the prosecution story could not succeed in the light of such evidence showing no compliance even with such obligatory provision. The rationale behind such decision, as I appreciate, is that the law which has been enacted simply does not run parallel to the normal principles of criminal jurisprudence. The provision of the Code of Criminal Procedure could not apply in its entirety. There are many provisions which appear contrary to the normal rule of evidence. One such provision is the provision of making confessional statement, written or verbal, by the accused before the police or any competent authority admissible. If the confession is written then it 9 creates a burden upon the accused to establish his innocence to degree of proof. This could not be under the normal principles of criminal jurisprudence. As such, the compliance of the Act and its provisions has to be ensured with utmost guarantee leaving no room for doubting the veracity of the prosecution case. 9. A Division Bench of this Court in the case of Ram Singh & anr. Vs. The State of Bihar reported in 2011(1) P.L.J.R. 195, to which I was also a member, lays down the principle in paragraph 13 that the confessional statement before the police or confession of a co-accused, if it has been reduced into writing, has been made admissible by raising presumption of guilt against the accused, which presumption is required to be displaced by the accused. Besides, there are certain other provisions of the Act, like Section 54 that mere possession of certain drugs or substance creates a liability on the person who was found in possession of the same to explain the purpose, else, he must be violating the Act and Rules made thereunder. This was the reason that stricter compliance of the provision is required because, ultimately, the provisions are very harsh and require raising a presumption 10 against the accused which could never be permissible under the Indian Evidence Act. If this is the reason then compliance of the provision which is merely obligatory has been found by us to be strictly made, else, that may also entail extending the benefit of doubt to the accused. 10. There is a provision under Section 55 of the Act which lays down that as soon as any article which is either a narcotic drug or a psychotropic substance is seized, it has to be immediately transferred to the Officer-in-charge of the Police Station. As may appear from that particular provision, as soon as such an article is brought to the Police Station it has to be sealed by the Officer bringing it or accompanying the substance along with the Officer-in-charge of the Police Station who is required to fix his own seal in addition to that of the Officer-in-charge and further to take samples from that and all samples so taken shall also bear the seals of the same Officer-in-charge of the Police Station besides of the Officer who had made seizure and brought the same to the Police Station. Here, in the present case, the evidence of P.W.1 and other witnesses, like P.W. 2 Basant Kumar Singh, 11 Inspector, Customs, P.W. 3 Awadhesh Kumar Pandey, a member of the preventive team and P.W. 4 Jagat Narayan Lal Verma, the Superintendent, Customs, Jogbani, indicates that after seizure of the packets of charas as alleged by the customs officials from the three appellants, to whom the article or substance recovered from the appellants was delivered for safe custody. No document or evidence had been produced during hearing of the trial to indicate that after being delivered to the Police Station, the recovered substance was kept at a particular place and the relevant entries were made in the register which was required to be maintained under law. Absolute absence is also of the evidence that the Officer- in-charge of the Police Station or P.W.1 had submitted the seized articles or substance by putting their individual seals as per requirement of Section 55 of the Act. P.W.1 who was an employee of the Customs Department has not stated anything about the manner in which the samples were drawn from the seized substance which were delivered to the Officer notified as Officer-in- charge of a Police Station under Section 53 of the Act. There is no further evidence that a Magistrate was deputed to certify the inventory 12 and drawl of samples in his presence as required by Section 52(1) or (2) of the Act nor any report by any Magistrate made admissible under Section 52(4) was produced. It is true that the report of the chemical examiner Exts.4 series does indicate that the Government Opium and Alkaloid Works, Ghazipur had received the sampled articles which were sealed but what was the container or in which it was sealed has not been stated either by the informant or the exhibited reports. Besides, the recovery was made on 18.1.2005 at 11.45 P.M. but the report appears submitted on 26.2.2005, i.e., after more than thirty nine days of the seizure of the substance. In addition to the above, the person before whom the search and recovery was claimed to be made of the three appellants, namely, Shri B.K.Singh who was the Superintendent of Customs Division, Muzaffarpur, was not examined and, as such, there is no evidence that indeed the three appellants were searched before the Superintendent of Customs and recovery was made. 11. The above are the frailties which create a doubt in the claim of the prosecution as regards this case. In my considered view, it was a case in which the prosecution had not succeeded in 13 proving the charge and the learned trial court ought to have acquitted the three appellants after giving benefit of doubt. 12. In the result, the appeal is allowed, the judgment of conviction and order of sentence passed against each of the three appellants are hereby set aside and they are acquitted. 13. The appellants are in custody. They shall immediately be released, if not wanted in any other case. ( Dharnidhar Jha, J.) Patna High Court The 2nd May, 2011 Kanth/A.F.R.