CRIMINAL APPEAL (DB) NO.463 OF 2009 Against the judgment of conviction dated 18.4.2009 and order of sentence dated 21.4.2009 passed in Mahnar P.S. Case No.161 of 2006 by Shri Prem Chandra Gupta, 1st Additional District and Sessions Judge, Vaishali at Hajipur. ******** SHEO JEE RAI, SON OF LATE JANG BAHADUR RAI, RESIDENT OF VILLAGE-RUPSIPUR, P.S. MAHNAR, DISTRICT- VAISHALI……………………………..............................APPELLANT. Versus THE STATE OF BIHAR………………………….RESPONDENT. ******** For the Appellant : Mr. S.N.P. Sinha, Senior Advocate, Mrs. Mira Kumari and Mr. Mukesh Kumar, Advocates. For the State : Mr. Ashwani Prasad Sinha, A.P.P. ******** P R E S E N T THE HON’BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON’BLE MR. JUSTICE RAJENDRA KUMAR MISHRA ******** S.K. Sharma & R.K. Mishra,JJ. The sole appellant, Sheo Jee Rai, has preferred this appeal against the judgment of conviction dated 18.4.2009 and order of sentence dated 21.4.2009 passed in Mahnar P.S. Case No.161 of 2006 by the 1st Additional District and Sessions Judge, Vaishali at Hajipur, whereby and whereunder he has been convicted under Section 2 20(b)(ii) C of the Narcotic Drugs and Psychotropic Act (hereinafter referred to as “the Act”) and has been sentenced to undergo rigorous imprisonment for 12 years and fine of Rupees one lac and in default of payment of fine he was further directed to undergo rigorous imprisonment for one year. 2. On the basis of self statement of S.I.-Cum- Officer- Incharge, Devendra Chaudhary (P.W.18), the F.I.R. was registered. The fardbeyan of the informant, P.W.18 was recorded on the Dalan of Jang Bahadur Rai (now dead) on 24.10.2006 and it was alleged that on that date at about 9.05 A.M., when he was on patrolling duty to maintain law and order alongwith B.M.P. Hawaldar Moti Singh (not examined), Constable 41 Ravi Rai (P.W.17), Constable 96 Rajendra Bhagat (P.W.15), Constable 91 Prahlad Ram (P.W.16), Chaukidar 2/14 Gonaur Paswan (P.W.12), Chaukidar 2/7 Prem Kumar Paswan (P.W.11) and Driver Constable 399 Jai Chand Kumar (P.W.13). On that date at about 11.30 A.M., he received confidential information regarding the concealment of Ganja in the Dalan of the house of Jang Bahadur Rai (now dead). On receiving such information, the informant proceeded 3 alongwith the police personnels towards the house of Jang Bahadur Rai and with the assistance of onlookers Dinesh Prasad Singh (P.W.8) and Suresh Kumar Singh (P.W.1) the house of Jang Bahadur Rai (now dead) was searched. In course of search, from the Dalan of Jang Bahadur Rai (now dead) 10 bags of Ganja each containing 25 Kgs., total 250 Kgs. was recovered. A seizure list was prepared which was signed by the accused persons as well as P.W.1, Suresh Kumar Singh and P.W.8, Dinesh Prasad Singh. As no satisfactory reply was obtained from the accused persons regarding the seized Ganja, the case was registered under Section 20 of the Act. The appellant, Sheo Jee Rai and another accused Jang Bahadur Rai were arrested. The informant has prepared his self statement/fardbeyan (Ext.2) and the signatures of P.W.1, Suresh Kumar Singh (Ext.1) and P.W.8, Dinesh Prasad Singh (Ext.1/1) were obtained on the fardbeyan. The fardbeyan (Ext.2) was forwarded and the F.I.R. (Ext.3) was drawn up. A seizure list (Ext.4) was also prepared. 3. After investigation charge sheet under Section 20 of the Act was submitted. On submission of charge sheet, the learned court below took the cognizance 4 under Sections 20(b)(ii)C of the Act against the accused. 4. The allegation was denied by the accused- appellant, so the trial proceeded. 5. In order to substantiate its claim, the prosecution examined 18 witnesses whereas the defence has examined three witnesses. The prosecution witnesses are P.W.1, Suresh Kumar Singh, P.W.2, Sant Lal Singh, P.W.3, Abhay Singh, P.W.4, Subodh Singh, P.W.5, Dron Chaudhary, P.W.6, Lala Singh, P.W.7, Rama Singh @ Rama Nand Singh, P.W.8, Dinesh Prasad Singh, P.W.9, Sobhit Singh, P.W.10, Harihar Das, P.W.11, Prem Kumar Paswan, P.W.12, Gonaur Paswan, P.W.13, Jaichand Kumar, P.W.14, Abdul Gafoor, P.W.15, Rajendra Yadav, P.W.16, Prahlad Ram, P.W.17, Ravi Kumar Rai and P.W.18 Devendra Chaudhary. The defence witnesses are D.W.1, Sushil Kumar, D.W.2, Brahamdeo Singh and D.W.3, Devi Thakur. 6. P.W.1, Suresh Kumar Singh, is a seizure list witness but has denied his signature on the seizure list. This witness has turned hostile. P.Ws.2, 3, 4, 5, 6, 7, 9 and 10 have not supported any part of the allegation and they have also turned hostile. The second seizure list witness, 5 Dinesh Prasad Singh, P.W.8, had expressed his total ignorance of the occurrence and he had denied that any seizure was made in his presence. 7. P.W.11, Prem Kumar Paswan, is Chaukidar 3/7. He has stated that he has not seen the occurrence. When he came after the occurrence he saw the Officer Incharge sitting on a bag. This witness had no knowledge about the contents of the bag and, therefore, has not supported the case of the prosecution. 8. P.W.12, Ganaur Paswan, is another witness. He has stated about the seizure of 10 bags but he was not in a position to say about the contents of the bag. Therefore, this witness has turned hostile. 9. P.W.13, Jai Chand Kumar, is a witness with whom the Officer Incharge had gone at the place of occurrence. He is himself a Constable. He has stated that he has not even visited the place of occurrence. This witness has also turned hostile. 10. P.W.14, Abdul Gafoor, is the Investigating Officer of this case who took the charge of investigation of this case on 16.1.2007. He has stated that on 22.1.2007, he sent the sample of seized Ganja for chemical examination 6 to Patna but this witness has stated that the report was not received. He has also not stated about the occurrence. He has stated that after investigation of the case, he has submitted charge sheet. This witness took up the charge of investigation when the major part of the investigation was completed. 11. P.W.15, Rajendra Yadav, has stated that he has participated in the seizure of Ganja and in his presence, the seizure list was made but he has stated that he has not opened the bags and his signature was not appended any where. 12. P.W.16 is Prahlad Ram. He has stated that he had gone to Gaushala of Jang Bahadur Rai from where 10 packets of Ganja were recovered. The seized Ganja was weighed in a Coal Depot and the same was brought to the Police Station. He has stated that the bag was not opened in his presence. 13. P.W.17, Ravi Kumar Rai, has stated that the lock was opened in his presence and the Ganja was recovered in his presence and the same was brought to the Police Station. 14. P.W.18, Devendra Chaudhary, is the 7 informant of this case. He has stated about the occurrence as alleged in the fardbeyan but this witness has fairly stated that nothing was written in the case diary with regard to taking of samples of Ganja. He has also not noted in the case diary that whether the bag was filled or blanked. He has also not noted about the contents of the bag in the case diary. He has also stated that he has not written in the case diary that the samples of seized Ganja were taken for chemical examination. 15. The defence of the appellant is in two folds. The first defence of the appellant is that he was not present in the house when the seizure was made and secondly, no paper has been produced with regard to the ownership of the house from where the seized articles were recovered. 16. Learned counsel for the appellant has submitted that there is no evidence at all that the samples were taken for chemical examination from each of the bag. 17. We have perused the entire evidence of the prosecution witnesses and other materials on record. From the evidence of the witnesses, it appears that there is no evidence at all as to whether the samples were taken from each of the bags. It has also come on the record that 8 though the samples were sent for chemical examination but no report has been received as to whether the samples which were sent for chemical examination were Ganja. The order of conviction has been passed only on the basis that the seized articles may be contraband articles. The order of conviction is illegal in view of the fact that the same was passed without receipt of the report of the Forensic Science Laboratory. 18. This Court vide order dated 10.5.2010 on submission of the learned counsel for the appellant has called for a report from the Forensic Science Laboratory, Patna on analysis of the samples of Mahnar P.S. Case No.161 of 2006 (G.R. No.3359 of 2006). The report of the Forensic Science Laboratory, Patna, has been received in this Court which mentions that the polythene packet containing some dry-brown flowering and fruiting vegetable substance was found to be Ganja containing Tetra Hydro Cannabinol (T.H.C.) as its chief intoxicating ingredient. Ganja is the flowering and fruiting tops of the females plant of Cannabis-Sativa. The report is unreliable in view of the fact that there is no reference as to what quantity of the seized articles was sent for chemical 9 examination. The format of report does not incorporate this fact. All the entries with regard to the receipt of the samples are empty. Such report cannot be appreciated or accepted in view of the harsh provisions relating to punishment under the Act. The mandatory requirement of the Act is that the provisions with regard to sending the sample to the Forensic Science Laboratory must be followed. It is not only to seen that the sample was sent for chemical examination rather it has to be seen that in what manner the same was sent and the seized article must be sent in the sealed position in toto and without delay. 19. In the present case, from the report it does not appear that any of the provisions under the Act was followed. There is no mention that as to how and what quantity of the seized article was sent. This itself makes the report unreliable and suspicious. Most of the prosecution witnesses, even the police witnesses, have not supported the case of the prosecution who were participants of the raid. It is not essential that all the witnesses of the prosecution should support the case of the prosecution but it has to be proved that the occurrence as alleged has taken place in the manner as alleged. The 10 order of conviction and sentence has been passed without receipt of report of Forensic Science Laboratory only with a presumption that the seized articles might be Ganja or contraband articles. Even the independent witnesses have not supported the prosecution case. It is not essential that the independent witnesses should support the case of the prosecution but if the persons who happen to be the member of the raiding party do not support the case of the prosecution, the case becomes doubtful. P.Ws.14, 15, 16 and 17 have not supported the case of the prosecution regarding the manner of seizure and these witnesses are not the persons of the accused rather they are the persons of the prosecution and are employees of the Government. 20. From the discussions made above, it is apparent that the mandatory requirement of the search and seizure under the provisions of the Act has not been followed and the order of conviction has been passed without receipt of the report of the Forensic Science Laboratory. These are the serious infirmities in passing the judgment of conviction and order of sentence. The prosecution has failed to prove the charges levelled against the appellants beyond the shadow of all reasonable doubts. 11 Accordingly, the appellant deserves to be acquitted. 21. In the result, this appeal is allowed and the judgment of conviction and order of sentence are set aside. The appellant is acquitted of the charges. The appellant is in custody, so he is directed to be released forthwith if not wanted in any other case. (Shyam Kishore Sharma, J) (Rajendra Kumar Mishra, J) Patna High Court, Patna. Dated: The 27th of June, 2011. Pradeep Srivastava/N.A.F.R.