CRIMINAL APPEAL NO. 359 OF 2006 (D.B). ------------ Against the order of conviction dated 03.03.2006 and judgment of sentence dated 07.03.2006 passed by Sri Samir Kumar Jha, Ist Additional District & Sessions Judge-cum- Special Judge, Araria, in Special Case No. 04 of 2003/ Trial No. 04 of 2005. ------------ 1. Laxhman Singh @ Lachman Singh, Son of Late Kripal Singh. 2. Sukhdeo Singh @ Sukhdeb Singh, Son of Sri Dilbag Singh. Both residents of Village-Kapura, P.S. Maina, District- Moga(Punjab). …………………..Appellants. -Versus- The State of Bihar……………………………………………….Respondent. ------------ For the Appellants: M/S. Vikram Deo Singh, Ramesh Kumar Singh, Radha Mohan Singh and Sanjay Kumar Singh, Advocates. For the Union of India: Mr. Binay Kumar Pandey, C.G.C. ------------ P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH S.K.Sharma & D.K.Singh,JJ. The two appellants have challenged the judgment and order of conviction dated 03.03.2006 passed by the learned Ist Additional District & Sessions Judge-cum- Special Judge, Araria, in Special Case No. 04 of 2003/ Trial No. 04 of 2005 whereby 2 the two appellants have been convicted under Section 20(b) (ii) (c) of the N.D.P.S.Act, 1985 and sentenced to undergo R. I. for twelve years and fine of Rs. One Lac each was imposed and in lieu of fine two years R.I. was awarded to the convicts. However, all sentences were directed to run concurrently. 2. For proper appreciation of grounds of appeal, the accusation in brief is necessary to be traced out. On 23.04.2003 at about 11.00 hours, a specific information was received by Custom Inspector (P.W.2), Customs Division, Forbesganj, on telephone from coded informer that a Tank Lorry (Oil Tanker) bearing Registration no. ASO-1- 6272 coming from Jogbani side is carrying contraband of Ganja, concealed in a specially created false cavity in the tanker and the said information was conveyed by the Custom Inspector to the superior officers of the Department. 3. On receiving the aforesaid information, a team of preventive officers and staff of the Customs Department, 3 Forbesganj, headed by the Deputy Commissioner of Customs, Forbesganj (P.W.8) constituted a raiding team to intercept the said tank lorry and then the Preventive Team Officers came to Jogbani- Araria Road immediately. On 23.04.2003, at about 15 hours, the said tank lorry was noticed coming from Jogbani side at Forbesganj College, on which the preventive team members signaled the said tank lorry to stop, but the driver of the tank lorry, ignoring the signal, speeded up to escape. When the said tank lorry did not stop in spite of the signal, the preventive officers chased the said tank lorry with their departmental vehicles and succeeded to intercept the said tank lorry near zero mile, Araria, whereupon the Preventive Officers gave their identification as well as the identification of the Senior Officer, who was leading the raiding team. The passengers of the tank lorry were conveyed about the purpose of stopping the tank lorry. The occupants of tank lorry disclosed their names to be Laxman Singh 4 and Sukhdeo Singh (both appellants), the driver and Khalasi, respectively, of the tank lorry. Search was made in presence of two independent witnesses after disclosing the intention to search. Initially, the secret chambers could not be located, but on opening of the chamber, the raiding team got the smell of Ganja and it was believed that the said contraband is Ganja, which was subsequently admitted by driver and the Khalasi. The further case of the prosecution is that, when the preventive officer wanted to make a thorough search, then the driver and independent witnesses requested the preventive officer to take the said tank lorry for search to a safer place for safety and to avoid the crowd of the passers-by. Then the tank lorry alongwith driver, khalasi and the independent witnesses were taken to the Office of the Customs Division, Forbesganj, for thorough search. Thereafter, search was made by Customs Office, Forbesganj, in the presence of independent witnesses, driver and khalasi and senior officers and on 5 opening of cavity of chambers of tank lorry, 41 bags of Ganja wrapped in polythene sheet were recovered, weighing about 250 Kg. which was estimated to be worth Rs. Five Lacs. Consequently, the seizure list and Panchanama were prepared by the preventive officers of the raiding team in presence of independent witnesses, driver and khalasi of the tank lorry, who signed the seizure list. The preventive team, thereafter, took the samples of the seized Ganja in presence of the independent witnesses, driver and khalasi for chemical examination. The raiding party recorded the voluntary, as well as the interrogatory statements of driver and khalasi, in presence of independent witnesses, wherein it was admitted that they were carrying contraband Ganja for money. Thereafter the apprehended accused were remanded to the judicial custody which gave rise to Forbesganj Unit Case No. 88/NDPS/FBG/03 dated 23.04.2003. Subsequently, the complaint was filed on 02.06.2003 by P.W.2 in the court of the learned District & Sessions Judge, Purnea, 6 which gave rise to Special Case No. 04 of 2003. 4. The complaint envisages nine documentary evidences, namely:- (1) Seizure list receipt no. 2852 dated 23.04.2003 marked as Ext.2. (2) Panchnama Ext.-3. (3) Voluntary statement of driver (Laxman Singh) Ext.-6. (4) Voluntary statement of Sukhdeo Singh (khalasi) Ext.-5. (5) Copy of summons served to both accused. (6)Interrogatory statement of both accused (Exts. 7 and 8). (7) Arrest memo of both accused. (8) D.R.3 of both the accused. (9) Address verification report of the both accused. (10)D.R.I.-2 documentary. 5. 14 persons were cited as prosecution witnesses in the complaint petition. Out of which, P.W. 1, Umesh Thakur is the only independent witness, who is also a seizure list witness. (2) Ashwini Kumar(complainant) 7 being the Customs Inspector, Forbesganj, has been examined as P.W.2. (3) Asim Kumar Mandal the other Customs Inspector, Forbesganj, has been examined as P.W.3. (4) Suresh Chaudhary being the driver of Forbesganj Customs Division and the Preventive Team has been examined as P.W.4. (5) Ashwini Kumar, Devendra Sharma and Chandradeo Paswan being the constables of Forbesganj Customs Division have been examined as P. Ws. 5,6 and 12. (6) Mritunjay Thakur, Customs Inspector, Forbesganj, has been examined as P.W.7. (7) Kailash Chandra Zena, the Deputy Commissioner, Customs who led the preventive team has been examined as P.W.8. (8) Swapan Kumar Guha, Custom Superintendent, Forbesganj, a member of preventive team has been examined as P.W.9. (9) Samir Gupta, the Superintendent of Customs Forbesganj, a 8 member of the preventive team has been examined as P.W.10. (10) Birendra Nath Gupta, Havildar of Central Excise, has been examined as P.W.11. (11) Romendra Nath Naskar being the official number of preventive team has been examined as P.W.13. (12) Nand Lal Yadav being driver of the Customs Office, Forbesganj, who drove one of the vehicles of Preventive Team, has been examined as P.W.14. Uday Chand Sah, one of the two seizure list witnesses, has not been examined. Out of 14 witnesses who have been examined, 13 are the official witnesses and the only independent witness is P.W.1. 6. The cognizance was taken on the basis of the complaint and the charges were framed under Section 20(b)(ii)(c) of N. D. P. S. Act. Basically, the prosecution has relied upon the evidence of the official witnesses, they are P. Ws. 2 to 14. The complainant has been examined as P.W.2, 9 who was posted as Customs Inspector at Forbesganj. It was P.W.2, who received the secret information at 11 A. M., about the tank lorry carrying Ganja, in a concealed chamber. P. W. 2 informed the Deputy Commissioner, who constituted the raiding team and then the complainant alongwith raiding team went to Forbesganj College turning and started waiting for the suspected tank lorry to come. The tank lorry was seen coming from Jogbani side, when it was signaled to stop but the driver tried to speed up the vehicle but after being chased by the departmental vehicle, the tank lorry was intercepted. Then the raiding team after disclosing their identity, in presence of two local witnesses, present at the place of interception, conducted search of the lorry and on opening of the chamber, smell of Ganja emitted all over the place and then the vehicle was taken to Forbesganj Customs Office, when 41 bags of Ganja wrapped in polythene were recovered, weighing about 250 Kg. worth Rs. Five Lacs. Subsequently, the seizure was made 10 and the seizure list was prepared in presence of two independent witnesses, Umesh Thakur (P.W.1) and Uday Chand Sah (not examined). P.W. 2 has proved the seizure list. Seizure list has been marked as Ext.2. 7. P. W. 2 in paragraph no. 4 of his evidence simply says that for the purpose of chemical examination, the samples were drawn and subsequently sent for chemical examination to Gajipur(U.P). This witness has also proved the chemical examination report (Ext. 4). P.W.2 also took the voluntary and interrogatory statements of the accused persons. The other P. Ws. have reiterated the version of P.W.2 in their respective evidences. 8. It is well settled principle that N. D. P. S. Act being a stringent Act, the procedural safe guards have to be followed very meticulously. 9. From perusal of the evidence of the witnesses and the complaint filed before the learned Sessions Judge, it is not apparent as to how the seized contraband was weighed, how the samples were drawn 11 and what was the weight of samples which were transmitted for chemical examination or why the material exhibits like the seized Ganja and weighing equipment, polythene wrappers were not exhibited as material exhibit during trial. 10. So far as the weighing of seized contraband is concerned, P.W.1 in paragraph no. 2 of his evidence has stated that he does not know the actual quantity of seized contraband Ganja. P.W. 2, in paragraph no.2 of his evidence, suggests that it was 250 Kg. in 41 packets and similar is the evidence of P.W.3 in paragraph no.2, P.W.6 in paragraph no.2, P.W.7 in paragraph no.1, and P.W.9 in paragraph no.1 and P.W.10 in paragraph no.1. P. Ws. 4 and 5 do not talk about the weight of the seized Ganja. Though, P.W.7 in paragraph no.3 of his evidence suggests that the Ganja was weighed, but P.W. 7 has nowhere stated in his evidence whether the weighing equipment was marked as exhibit. None of the witnesses have stated that as to how the alleged Ganja was weighed. Hence, so far as the weight of the seized 12 contraband is concerned, the prosecution has failed to prove the exact weight, as none of the material witnesses have suggested as to how the seized contraband was weighed. Hence, it appears that weight of 250 Kg. as claimed by the prosecution is a mere speculative calculation of the weight of the seized contraband. The evidence of the prosecution, regarding the weight, that the alleged Ganja was 250 Kg., is without any explanation as to how it has been weighed and hence, the weight of the contraband as alleged to be 250 Kg., can not be treated to be the exact measurement of the seized contraband in the absence of any evidence on record to suggest that, it was weighed immediately after seizure, with the weighing equipment. P. Ws. 4,5 and 8 being silent on the weighing of the contraband, also creates doubt about the exact weight of the seized contraband. Hence, in view of this Court, the prosecution has failed to prove the exact weight of the contraband. 11. So far as the information with regard to the seized material is 13 concerned, Section 57 of the N. D. P. S. Act deals with the same which mandates that within 48 hours a complete report, with regard to the alleged seized materials has to be forwarded to the superior officer, but the evidence on record does not reflect that any information was given to the superior officer with regard to the seizure of the alleged contraband. 12. Section 55 of the N. D. P. S. Act, envisages that the police has to take charge of the seized Article and has to take draw samples and seal the samples with the seal of the Officer-in-Charge of the police station. 13. It is evident from the evidence of P.W.2, in paragraph no.9, that the nearest police station was Araria Sadar, but no information was given to the said police station nor any information was given to the Executive officer or the S. D. O., Araria. There is no evidence on record to suggest as to how samples were drawn, sealed and transmitted to the Forensic Laboratory. 14 14. By virtue of the powers conferred under Sub-section(1) of Section 52A of Narcotic Drugs and Psychotropic Substances Act, the Central Government has issued a Standing Order No. 1/1989 dated 13.06.1989, detailing the elaborate procedure to be adopted by the Drug Law Enforcement Agencies while seizing the drugs, drawing the samples therefrom, proper storage and the manner in which the said drugs could be disposed of by the officers concerned. 15. Consequently, on 22.06.1989, Ministry of Finance issued directions, when it was brought to the notice of the Finance Ministry, that the different Investigating Officers of various enforcement agencies adopt different procedures in drawing samples from seized narcotic drugs and psychotropic substances, particularly with regard to the number of samples drawn, quantity of the sample, sealing, mode of packing, dispatch of samples etc., to the laboratory concerned for testing purposes. It has also been found that handling of samples at different stages and places may 15 also become an issue in dispute during the trial and hence, a clear and uniform procedure is necessary, to avoid any doubt or confusion at any level, with a view to bring uniformity in approach in such matters, and also to provide for a secured system of handling of drug samples and disposal of seized drugs, it is decided to standardize the procedure with regard to drawing, forwarding and testing of samples and final disposal of the drugs and in pursuance to that the instructions were issued which are as follows: SECTION II “GENERAL PROCEDURE FOR SAMPLING, STORAGE, ETC. 2.1 All drugs shall be properly classified, carefully, weighed and sampled on the spot of seizure. 2.2 All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (punches) and the person 16 from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama, drawn on the spot. 2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium ganja and charas(hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative, before the sample (in duplicate) is drawn. Drawal of representative samples: 2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample are in equal quantity and is taken from each package/container of that lot and mixed together to make a composite whole, from which the samples are drawn for that lot. Storage of samples-Procedure 17 2.9 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the Sl. No. of the package(s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope which should also be sealed and marked „secret-drug sample/Test memo‟, should be sent to the chemical laboratory concerned. Despatch of samples for testing: To whom to be sent ? 3.0 The seizing officers of the Central Government Departments, viz., Customs, Central Excise, Central Bureau of Narcotics, Narcotics Control Bureau, Directorate of Revenue Intelligence etc. should despatch samples of the seized drugs to one of the Laboratories of the Central Revenue Control Laboratory, 18 nearest to their offices depending upon the availability of test facilities. The other Central Agencies like BSF, CBI and other Central police Organizations may send such samples to the Director, Central Forensic Laboratory, New Delhi. All State Enforcement Agencies may send samples of seized drugs to the Director/Deputy Director/Assistant Director of their respective State Forensic Science Laboratory. Preparation of inventory 3.1 After sampling detailed inventory of such packages/containers shall be prepared for being enclosed to the Panchnama. Original wrappers shall also be preserved for evidentiary purposes”. 16. Thus from the aforesaid instructions issued under Sub section 1 of Section 52A of the N. D. P. S. Act, it is apparent that the sampling can be done only by adopting procedures, either by drawing the sample from all the seized bags/packets or by amalgamating the whole seized contraband and make it a composite whole 19 and then to draw the sample or to make the bunch of package/containers seized together of identical size and weight, bearing identical makings then sample should be drawn from each lot, then only the accurate test result can be expected. 17. Though instructions issued by the Central Government has no force of law but they are intended to guide the officers and to see the fair procedure is adopted by Officer-in-Charge of the investigation as has been held by the Apex Court in the case of Khet Singh Vs. Union of India reported in (2002)4 SCC 380, in following words: “The instructions issued by Narcotics Control Bureau, New Delhi, are to be followed by the Officer-in-Charge of the investigation of the Crime coming within the purview of N. D. P. S. Act, even though these instructions do not have the force by law but they are intended to guide the officers and to see that a fair procedure is adopted by the Officer-in- Charge of the investigation.” 18. From perusal of the evidence, it 20 appears that P.W. 1 does not talk about weighing of the alleged contraband or drawing of the sample. P.W.2 in paragraph nos. 4 and 10 accepts about drawing of sample and sending it to the chemical laboratory on 24.04.2003, but the evidence of P. W. 2 does not reflect as to how the samples were drawn, sealed or how the serial numbers were given. P.W. 3 in paragraph no.2 of his evidence talks about the drawing of three samples but it does not talk how the three samples were drawn. P.W.3 does not talk about any date or time of drawing sample. P. Ws. 4 to 14 do not talk about drawing of the samples. The Forensic Laboratory‟s report which has been exhibited and marked as Ext. 4 reflects that it was transmitted to the Forensic Laboratory on 24.04.2003 which reached on 29.04.2003, but it only talks about two packets, one is 159.06 Grams marked as Ext. A/1 and another is 122.6 Grams, marked as Ext. A/2, which suggest that the samples were not drawn from all 41 packets seized, as per the Central Government Instruction No. 2.3. The 21 Investigating Agency had to withdraw 24 Grams from each packets meaning thereby that the net weight ought to have been 984 Grams. There is nothing on record to suggest that the two samples, which were transmitted for the chemical examination, were drawn from which packet. These are serious lapses on the part of prosecution. Hence, the prosecution can not be allowed to take advantage of their lapses, as has been held by the Apex Court while dealing with the N.D.P.S. Act in the case of The State of Punjab Vs. Baldeo Singh reported in 1999(6) S.C.C.172. Paragraph no.45 of the judgment reads as follows: “The prosecution can not be permitted to take advantage of its own wrong. Conducting a fair procedure for those who are accused of a criminal offence is the cornerstone of our democratic society. The conviction resulting from an unfair trial is contrary to our concept of justice. Conducting a fair trial is both for the benefit of the society as well as for an accused and 22 cannot be abandoned. While considering the aspect of fair procedure, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot allow admission of evidence against an accused, where the court is satisfied that the evidence had been obtained by a conduct of which the prosecution ought not to take advantage particularly when that conduct had caused prejudice to the accused. If after careful consideration of the material on record it is found by the court that the admission of evidence collected in search, conducted in violation of Section 50, would render the trial unfair then that evidence must be excluded.” 19. Hence, we come to the conclusion that the sampling has not been done in the prescribed manner. Accordigly, the court can not come to the conclusion that whole contraband was Ganja or not. In spite of Forensic‟s report to the effect that two samples transmitted were found to be Ganja. The act of not reporting the sample under the prescribed procedure, has 23 definitely prejudiced the interest of accused persons. 20. The interception of the vehicle was made at Araria Zero Mile whereas the actual search and seizure was done at Forbesganj Customs Office. The witnesses have accepted that they took about half an hour to travel from the place of interception to the Customs Office at Forbesganj. It is well settled law that the seizure should be made at the spot. As held by the Apex Court in the case of Khet Singh-Vs- The Union of India(Supra), paragraph no. 10 of which reads as follows: “It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance of recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself on when 24 the seizure is effected at the place where there are no witnesses available or there is no facility for weighing the contraband article or other requisite facilities are there. The officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared but at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were 25 taken into custody.” 21. In the present case, admittedly, the search and seizure were not made on the spot of interception of the vehicle. 22. P.W. 2,4,5,6,7 and 8 do not talk about any reason in their evidence about not effecting the seizure at the place of interception of the