CRIMINAL APPEAL No.433 OF 2007 (Against the judgment of conviction dated 07th April, 2007 and order of sentence dated 11th April, 2007 passed in Customs Case No. 51 of 2000 Trial No. 23 of 2007 passed by Shri Harendra Nath Tiwary, 9th Additional Sessions Judge, Muzaffarpur) ****** PRABHA DEVI, WIFE OF SRI RAMDAYAL SAH, RESIDENT OF VILLAGE CHARNAHA, POLICE STATION LANGARI, JHISUA (SISUA) NEPAL ……………………………………………………………APPELLANTS VERSUS THE STATE OF BIHAR……………………………..RESPONDENT *********** For the appellant :- Mr. Arun Kumar Tripathi, Amicus Curiae For Union of India :- Mr. Sarva Deo Singh, C.G.C. ******* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. The sole appellant has been convicted under Section 23 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) to undergo rigorous imprisonment for ten years in Customs Case No. 51 of 2000. The appellant has almost completed the sentence as she is in custody since 15.06.2000. The prosecution case, in short, is that the raiding party apprehended one Om Prakash at the Bus Stand on receiving information that the traders were 2 carrying Charas. Om Prakash is said to have disclosed that Prabha Devi was accompanying him and she was also carrying Charas. On search, 4 kgs. of Charas was recovered from the lady in question. It is stated that the informant asked the lady whether she would like to be searched in presence of Magistrate. The lady remained silent and did not give any answer. Thereafter, search was made and seizure list was prepared. Samples of alleged Charas were separated to be sent to the Forensic Laboratory for its examination. The main question raised in this appeal is that no procedure under Section 50 of the Act has been followed and secondly that there is a delay in sending the sample of seized Charas for examination. Learned Counsel for the appellant submits that the occurrence took place on 15.06.2000 when the Charas was seized. Thereafter no explanation has been given as to where the sample was kept and why it was sent for examination after a gap of one and a half months i.e. on 28.07.2000. Not only there was a delay in sending the sample but equal amount of delay took place in testing the samples sent, as the report was only sent to the Investigating Officer on 18.09.2000. Apart from which the submission is that the independent witnesses were not examined in this case to 3 prove that seizure was made. There are discrepancies in the evidence of the witnesses with respect to the seizure and some of the witnesses PWs 2 and 4 have said that they do not know who were the seizure list witnesses. PW 6 says that he has not signed on the seizure list nor was he present when it was prepared, and also says that he did not conduct the follow up action after the search. Learned Counsel has also raised another question which is that after the interrogation of the appellant, she had made a statement and put her thumb impression on it. However in the statement under Section 313 of the Code of Criminal Procedure, this aspect of the matter was not put before her and, therefore, the statement of interrogation can not be taken into account for the purposes of convicting the appellant. I find substance in the statement made on behalf of the appellant and as such the statement of interrogation, Exhibit-7, could not have been taken into account for the purposes of convicting the appellant. On perusal of the evidence, I find that most of the witnesses are vague about the manner in which search and seizure was made as well as about the procedure adopted while seizing the alleged Charas. I may point out that the appellant who has filed the jail 4 appeal is a very poor lady and it has come in her application before this Court that she is very poor and has young children and there is nobody to look after her interests and, therefore, she has absolutely no knowledge with respect to the procedure or the due formalities to be followed in pursuing the case which has resulted in her incarceration for about 9 years. Considering all the facts, I find that the appellant is entitled to be acquitted on the ground that there is infirmity in the procedure adopted for sending the sample of alleged Charas which has not been explained by the prosecution and which would lead this Court to conclude that the prosecution has not been able to prove its case beyond all reasonable doubts that there was recovery of Charas from the appellant. In the result, this appeal is allowed. The judgment dated 07th April, 2007 passed in Customs Case No. 51 of 2000 is set aside. The appellant is acquitted of the charges levelled against her. She is directed to be released forthwith if not required in any other case. (Sheema Ali Khan, J. ) Patna High Court April 29, 2009 A.F.R./Anand