1 Criminal Appeal (SJ) No.639 OF 2009 - - - - Against the judgment of conviction and order off sentence dated 25.7.2009 and 30.7.2009, respectively,, passed by j5th Additional Sessions Judge, Muzaffarpur, in D.R.I. Case No.14 of 2004 under Sections 20(b)(i)c,23 and 25 of the N.D.P.S.Act. - - - - Cr. Appeal No.639 of 2009 BRIJ KISHORE YADAV son of late Sita Ram Yadav, resident of Village Makanpur, P.S.and Ditrict Nawgachiya … … Appellant Versus STATE OF BIHAR … … Respondent For the appellant: Shri Md. Bahauddin, Adv. For the State: Shri Kumar Priya Ranjan,A.P.P. With CR. APP (SJ) No.641 of 2009 SHIVJI RAI @ SHEOJI RAI son of Rajendra Rai, resident of Village Surauli, P.S. Bibhutipur,District Samastipur … … Appellant Versus The State of Bihar … … Respondent For the appellant: Shri Rajeev Roy, Amicus Curiae For the State: Shri Binay Kumar Pandey, A.P.P. With CR. APP (SJ) No.652 of 2009 MITHAI LAL son of late Baidyanath Ram, resident of Village Bela, P.S. Ramgarhwa, District East Champaran … … Appellant Versus THE UNION OF INDIA … … Respondent For the appellant: Shri Naresh Chandra Verma, Adv. Shri Lakshmi Kant Tiwary, Adv. For the respondent: Shri Binay Kumar Pandey With CR. APP (SJ) No.700 of 2009 MARAN PASWANMaran Paswan, son of late Matuki Paswan, resident of Village Phaphot, P.S.Khodewanpur, District Begusarai … … Appellant Versus THE STATE OF BIHAR … … Respondent For the appellant: Shri Rudal Singh, Adv. For the State: Shri Binay Kumar Pandey - - - - 2 P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha,J.- The batch of four appeals arise out of the judgment dated 25.7.2009 passed by the learned 5th Additional Sessions Judge-cum-Special Judge, Muzaffarpur, in D.R.I. Case No. 14 of 2004. By the above judgment all the four appellants, one each in the four appeals, was found guilty of committing offences under Section 2(b)(i)(c) of the Narcotic Drugs and Psychotropic Substances Act ( the Act for short) and after being heard on sentence on 30.7.2009 each of the appellants was directed to suffer rigorous imprisonment for ten years as also to pay a fine of rupees one lac and in default of paying the fine the appellants had to suffer simple imprisonment for one year. The appellants have preferred separate appeals to challenge their individual convictions. 2. The case is based on the complaint petition filed by P.W.2 Shri R.K.Shrivastava who was the Intelligence Officer of the Directorate of Revenue Intelligence, Muzaffarpur. He had stated in the complaint petition that he had definite information that a Mahindra Jeep without registration number and a Fiat Car were carrying narcotic substance. Accordingly, he intercepted a Mahindra Jeep bearing 3 no registration number and the Fiat Car bearing registration No. BEV-4 along with their drivers, namely, Brij Kishroe Yadav and Mithai Lal, respectively. The other appellants were also found occupying the seat in the two vehicles. On search of Mahindra Commander Jeep it was found that a cavity was created under false ceiling roof and bottom base from which 43 packets of Ganja weighing 235 K.Gs. was recovered. Likewise, on search of the Fiat Car the complainant recovered 27 packets of Ganja from its rear seat and dickey which was weighed 90 K.Gs. The search was made in presence of Rakesh Kumar and Ravi Kumar( both not examined) and, accordingly, seizure memo (Ext.2) was prepared. It was duly signed by two public witnesses besides being signed by three appellants, namely, Brij Kishore Yadav, Mithai Lal and Sheoji Rai. Their confessional statements Exts.3 to 3/b were recorded. As per the contents of the three documents, they were scribed by Surendra Kunar who has also not been examined. The complainant stated that the recovery memo was prepared in presence of Rakesh Kumar and Ravi Kumar and the same was also signed by the four appellants who put their thumb impressions upon them. The panchnama, as regards the recovery of narcotic substance as also the 4 vehicles, were also prepared and they were signed by some persons who had associated themselves to Ext.4 the recovery memo. 3. P.W.2, thereafter, prepared the samples of the recovered article and dispatched the same to Central Revenue Control Laboratory, New Delhi for chemical analysis and, accordingly, Ext.1 was received and thereafter the complaint petition was filed which ended in the impugned judgment. 4. Shri Rajeev Roy, learned Amicus Curiae appearing on behalf of the appellant in Cr. Appeal No. 641 of 2009(S.J.) was making submission along with Shri Naresh Chandra Verma and Shri Rudal Singh learned counsel for other appellants that P.W.2 besides being the complainant was holding the enquiry in the matter and that was against the settled principles of law. The learned Judge who delivered the judgment of conviction and passed the sentence upon the appellants was not considering some of the vital defects in the prosecution case, like, non-examination of Rakesh Kumar and Ravi Kumar besides also of Surendra Kumar who was the author of the documents which were the basis for recording conviction of the appellants. In addition to three non-examined witnesses, some of the members of the very team which was being headed by 5 P.W.2 were also not examined and there was no explanation in that behalf as to why S.H.Hussaini, and Havildar Kamal Singh were not produced in court. It was contended by learned counsel appearing on behalf of the appellants that the findings recorded by the learned trial Judge were based on seizure list, confessional statements, recovery memo and panchnama, but there was complete absence of evidence as to who had authored it and when the documents are considered, two of them namely, confessional statements Exts.3 to 3/c appear recorded in the writing of Surendra Kumar but he has not been examined and there is nothing either in the documents, like recovery memo and panchanama as to who had written those documents nor there was any evidence in that behalf and, as such, those documents were simply inadmissible in evidence. The judgment in paragraphs 9 to 10 was not assigning any reason nor was discussing the features of the report of the Forensic Science Laboratory and as regards the evidence of certification on inventory and storage of the seized articles besides destruction thereof in addition to drawl of the representative sample nothing was produced which could be the primary 6 evidence on investigation of the facts as required under Section 52A(4) of the Act. 5. shri Naresh Chandra Verma, learned counsel appearing on behalf of the appellant in Cr. Appeal No. 652 of 2009(S.J.) was specially highlighting the delay in preparing the sample and dispatch of the same to the Chemical Analyst, besides the delay in preparation of the report and was submitting that in absence of any explanation in that behalf, the court has to viewe with suspicion that sampling of the articles which were recovered had not been dispatched for chemical analysis. It was contended by learned Amicus Curiae appearing on behalf of the appellant in Cr. Appeal No.641 of 2009(S.J.) that it appears that in a case of such huge recovery of narcotic substance the complainant was either idling himself or was purposely evading the performance of his duties and that could be the reason of non-production of the evidence by getting a Magistrate deputed so as to presenting the primary evidence through his report regarding compliance of the provision Section 52A of the Act. It was contended by Shri Roy that this Court should view the lapse in prosecution case in such an important case with all seriousness. 7 6. The evidence of P.W.2, who is the complainant as also the Enquiry Officer, who filed the complaint petition, supports the fact which was alleged in the complaint petition. The same is supported by the evidence of P.W.1 Indradeo who was a Havildar posted in the unit of Directorate of Revenue Intelligence in which the complainant was posted as an Intelligence Officer. In addition to the above, support to the prosecution case comes from the evidence of P.W. 3 Rakesh Ranjan who was also a Revenue Intelligence Officer in the same unit and he was also one of the members of the party which had gone to wait for the vehicles to be intercepted and searched. Their evidence indicates that the two Officers had searched the vehicles and recovered 235 K.Gs. of Ganja from the cavity created under the false ceiling and bottom base of unnumbered Mahindra Commander Jeep while another 90 K.Gs. of Ganja was recovered from the rear seat and dickey of the car. They have stated that the vehicles were being driven by the two appellants,namely, Brij Kishroe Yadav and Mithai Lal. In fact, P.W.2 has stated in the complaint petition that Brij Kishore Yadav was driving the Fiat Car whereas Mithai Lal was driving un-numbered Mahindra Commander Jeep. In evidence he might be 8 not specifically stating as to who was occupying the driver’s seats of the two vehicles, but from the evidence of other witnesses it comes definite that it were the two appellants Brij Kishore Yadav and Mithai Lal who were driving the two vehicles, Mahindra Commander Jeep and Fiat Car, respectively, and the remaining appellants were occupying the seats inside the two vehicles from where all the four appellants were arrested. The recovery memo- cum-seizure memo Ext.2 indicates that the four appellants were suspected and detained on account of the recovery of the above quantity of Ganja from the two vehicles. It is also indicated by Ext.2 that two vehicles were also seized as per seizure memo which was jointly prepared for the recovery of Ganja and the vehicles. 7. Section 52(3) of the Act directs that if a person is arrested and an article is seized under sub-section (2) of Section 41, Sections 42,43 and 44 of the Act, he shall be forwarded to the Officer-in-charge of the nearest Police Station empowered under Section 53 of the Act. Sub-section (4) to Section 52 indicates that the Officer who is handed over either any person or article on account of being forwarded to him, shall have to take necessary measures for disposal of the property or 9 person with convenient dispatch. On a conjoint reading of Sections 42 and 55 of the Act what appears is that there could be two classes of Officer-in-charge- one class could be the Officers of departments other than the police department in respect of whom there has to be a special notification to be issued by the Central Government in consultation with the State Government designating such Officer of the other department as Officer-in-charge of the Police Station so as to entering into any premises, building, vehicles, vessels, etc. to make search and seizure. As regards the designated Officers Section 42 of the Act itself classifies as to who are the Officers who are authorized to enter into any premises, etc. to make search and seizure but when it comes to disposal of the property after it has been received on transfer from the Officer who had recovered it to the Officer-in-charge of the Police Station, as is indicated by Section 52 of the Act, then the mandate of Section 53 of the Act is that there must be some authorized Officer appointed to act as aan Officer-in-charge of the Police Station through a proper notification in that behalf which has to be issued by the Central Government in consultation with the State Government. 10 8. Here, in the present case, there is no mention as to who was the Officer-in-charge who had been authorized under Section 53 of the Act as the Officer-in-charge of the Police Station. In the present case the Officer who had conducted the search and seizure of the prohibited materials were Officers of the Directorate of Revenue Intelligence who were Officers not of the police department. Even if assuming that the complainant was the authorized Officer then there had to be compliance of the provision of Section 52A of the Act which requires that as soon as the seized property is transfer to the Officer-in-charge of the Police Station or delivered to him, an order regarding deputation of a Magistrate has to be obtained who has to certify the inventory and all details of the seized articles as per the provision contained in Section 52A (1) and (2) and has also to supervise the taking of photograph of the drug or substance and further to certify that those photographs were taken in his presence. The Magistrate was enjoined with a duty by Section 52A(2) to oversee drawl of the representative samples of such drug or substance and to certify the correctness of the list of samples so drawn. I have already pointed out that these acts are necessary to be performed 11 regarding the inventory, taking of photographs or drawl of the representative samples and are to be treated and admitted as primary evidence of those cases which are required to be performed by a Magistrate or an Officer-in-charge as notified under Section 53 of the Act in view of the admissibility of the report as primary evidence. 9. Considering the evidence adduced in the court below, in spite of there being evidence orally adduced by the complainant and his companion personnel of his department, like, P.W. 1 Indradeo and P.W. 3 Rakesh Ranjan, I could not find any evidence in the form of admissible evidence. Section 52A(4) refers to the Magistrate on certification of inventory or taking of photograph and on further certification that the same was done in his presence to avoid any mischief. The purpose behind it is not only that the seized articles could not be adulterated but also the seized articles could not be replaced by any other article. Normal rules of evidence as may appear from the provision of Section 52A of the Act, have been done away with and special rule has been inserted by virtue of that very provision. The importance of the above provision, in my view, is 12 to obviate any chance of adulteration, substitution or theft of the really seized article. 10. If the compliance of Section 52A has not been made then what could be the value of the evidence of sampling, storage or destruction of the articles. I could simply say that the evidence has to be considered with suspicion. The evidence which was orally coming from other witnesses, in absence of the evidence of the Magistrate who had to make report under Section 52A of the Act, could not be accepted and no conviction could be allowed to sustain. This is one aspect of the present case in which there is no compliance. 11. The other aspect of the case is that some of the important persons who were associated with creation of certain documents which were admitted in evidence and which were made basis for recording conviction, were not examined. One Surendra Kumar had recorded the confessional statements of the appellants Brij Kishore Yadav and Mithai Lal, but he was not examined. The two documents, Exts. 3 and 3/A were scribed by Surendra Kumar. Some special rule might have been inserted in Section 52A of the Act but the normal rule of evidence has not been waived. If there is no special provision inserted to do away with the normal rule of evidence, the 13 normal rule of evidence has to be followed and if that has not been done, then the documents created in conflagration of the rules of evidence could not be the basis for recording any findings. Besides, non-examination of Surendra Kumar and other witnesses who were very deeply associated with the investigation and who were the Officers signing not only the seizure memo but had also associated themselves with the seizure and preparation of the report in that behalf were also not examined. It might be argued that the Officers of the Directorate of Revenue Intelligence might not have any personal grudge or animosity to grind against the four appellants but could not it be a case that the complainant who was himself enquiring into the aspect of the matter was preparing a fool-proof case so as to obtaining conviction for the appellants and, as such, he was not getting it proved by examining either Surendra Kumar or any other witness by producing them, knowing full well that they might not be supporting the preparation of the document either by them or by any of them. This is the reason that no explanation was probably coming from the prosecution for their jnon- examination. This Court has to draw an adverse inference on account of non- examination of such 14 important witnesses, like Surendra Kumar, Rakesh and Ravi. The recording of certain findings on the basis of seizure list, confessional statements as also on recovery memo, to me, appears completely untenable and, thus, they cannot be sustained. 12. A contention was raised by Shri Verma, learned counsel appearing on behalf of appellant Mithai Lal that there was some delay in drawl of the sample, dispatch of the same to the Central Revenue Control Laboratory and the report also but on perusal of the document Ext.1 I do not find much substance in the argument inasmuch as the recoveries were made on 13.8.2004 and the same was dispatched to Central Revenue Control Laboratory, New Delhi on 16.8.2004 and as per the report of the laboratory the same was received on 23.8.2008. It was contended on behalf of the appellants that there is no evidence as to where they were put after being receipt in the Laboratory. The report itself indicates that the sealed packets containing the sampled articles had been kept inside the Strong Room of the Laboratory and they were brought out for the analysis of their contents. The Laboratory of the Central Revenue Control Laboratory must be a very reputed laboratory and it must be observing the formalities on securing the 15 sample which is received by it and it could be hazardous to say that it could either be manipulating or allowing some manipulation in the sampled articles. As regards delayed receipt, it must be appreciated that the envelope being dispatched from the Officer it must have taken time to reach Delhi. The envelope reached Delhi on 23.8.2004 just on the tenth day which clearly does not indicate a delayed receipt. The report was being prepared on 11.10.2004. As may appear from the tenor of the report, it may be the probability that the Laboratory on receipt of the envelope had stored it into the Strong Room and it had to analyze many samples and prepare reports and that could be the ground for making report on the above noted date. But the defect which I have pointed out just above, the complainant was himself enquiring the allegation and making the complaint. I find that there was satisfactory reason to suspect the prosecution case as there could be suspicion that the same seized articles had been sampled and dispatched to the Laboratory for analysis on account of non-certification as per Section 52A of the Act. 16 13. In the above view of the matter, I find that it was a case in which the appellant ought to have been acquitted by giving benefit of doubt. 14. In the result, the four appeals are allowed, the judgment of conviction and order of sentence passed upon each of the four appellants are hereby set aside and they are acquitted. 15. The appellants are in custody. They shall be released forthwith if not wanted in any other case. 16. Before I part with the present appeal, I want to record the case related to recovery of 425 K.Gs. of Ganja. But the complainant Sri R.K.Srivastava appeared either handling the case not only ineptly but definitely with a view to helping out the drug-peddler. He did not comply with the provisions either of Section 52A or of 55 of the Act and that appeared done with a definite motive to help out the smugglers. One of the witnesses, P.W. 3 had stated that his house was searched by the CBI. It appeared to me that he was not doing the minimum required under the Act by seeking an order under Section 52A of the Act to place clinching evidence on purity of the material which was sampled as also on the collection of evidence. I recommend the concerned Ministry of Union of India, that is, Ministry of Finance to 17 hold an enquiry in the dereliction to duty of Sri Srivastava. 17. Let a copy of this judgment be forwarded to the said Ministry of Govt. of India for needful. ( Dharnidhar Jha, J.) Patna High Court The 12th May, 2011 Kanth/A.F.R.