CRIMINAL APPEAL No. 17 OF 2008 AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 06.10.2007 AND 08.10.2007 RESPECTIVELY PASSED BY SRI DAYA NAND PANDEY, ADDITIONAL SESSIONS JUDGE VTH, MUZAFFARPUR. **** 1. MD.FAIYAZ ALAM, SON OF SK. ISLAM, RESIDENT OF VILLAGE AND POST OFFICE – SHIVRAJPUR, POLICE NAUTAN, DISTRICT – WEST CHAMPARAN. 2. MD. ALI AKBAR, SON OF MD. MUZIBUR RAHMAN, RESIDNET OF VILLAGE AND POST OFFICE – BAWANPARA, POLICE STATION – SHITAL KOCHI, DISTRICT – KOOCH, BIHAR. ----------------------------------- (Appellants) Versus THE STATE OF BIHAR ------------------------- (Opp. Party) **** P R E S E N T For the Appellants :- Sri Anirudh Mishra, Advocate. (Amicus Curiae) For the Respondents :- Sri Binay Kumar Pandey, C.G.C. THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD **** Gopal Prasad, J. Appellants have been convicted for offences under Section 23 of the N.D.P.S. Act and has been sentenced to undergo rigorous imprisonment for 15 years and the fine of Rs.1,50,000/- (one lac and fifty thousand) to both the accused has been imposed and in default of payment of fine, have been ordered to further undergo rigorous imprisonment for two years. 2. The prosecution case, as alleged is that the complainant is a public servant working as Intelligence Officer at Directorate of Revenue Intelligence, Muzaffarpur and is filing a complaint in official capacity alleging therein that on - 2 - the basis of the specific information the complainant intercepted a truck bearing Registration No. W.B. -O 3 - 0728 on 30.05.2003 along with occupant Md. Ali Akbar and Faiyez Alam at National Highway 28 near Chanakya Hotel and 69 packet of Nepali Ganja weighing 1372 kgs. gross 1335 Kg. net recovered from the truck in presence of independent witnesses which was seized. The accused persons admitted their guilt and they also admitted their involvement in smuggling of Ganja which were being smuggled from Nepal to Bengal, Belurghat for money. During the enquiry, the sample of the seized Ganja was sent for chemical analysis to the Central Revenue Control Laboratory and it has been reported that the same is Ganja within the meaning of NDPS Act and during the enquiry on the said complaint the cognizance was taken on 01.08.2003 and subsequently the charge was framed on 22.06.2004 for offence under Sections 20, 23 and 25 of the NDPS Act for having possession as well as importing and smuggling of Nepali Ganja respectively. 3. However, during the trial, seven witnesses were examined i.e. P.W. 1 Rajesh Kumar Srivastava, P.W. 2 Rakesh Ranjan, P.W. 3 Indradeo, P.W. 4 Deepak Kumar, P.W. 5 Brajbhushan Kumar, P.W. 6 Surendra Kumar, and P.W. 7 Laxmi Choudhary. The documentary evidence adduced as Ext. 1 is the seizure memo, Ext. 2 is the seizure list and Panchnama regarding recovery of Ext. 3 is the confessional statement of co-accused Ali Akbar, Ext. 3/1 is the confessional - 3 - statement of Faiyez Alam recorded by Surendra Kumar Khatib and witness. Ext. 4 – Panchanama, Ext. 5 is the complaint petition, Ext. 6 is the signature of seizure list. Signature of Surendra Kumar on seizure list (the material Ext. 1 is the sample invalid of the seized Ganja), Exts. 1, 2 and 6/3 is the signature of Surendra Kumar on recovery memo and Ext. 6/4 to 6/7 is the signature of Surendra Kumar on statement of Ali Akbar and Ext. 6 and 11 is signature of Surendra Kumar on statement of Faiyaz Alam. Ext. 12 – 14 is the signature of Surendra Kumar on the statement of Fiyaz Alam and Panchnama. Ext. 7 is the original test report, Ext. 7/1 and 14 envelop of test report, Ext. 8 certification by the Judicial Magistrate, Ext. 9 is the disposal of the Ganja, Ext. 9/3 is the certificate regarding the disposal. 4. After considering the submission of the parties as well as oral and documentary evidence adduced by the prosecution, the learned trial court convicted the appellants as stated above. 5. Learned amicus curiae, however, submitted that the Ganja was seized in several packets but the sample was neither taken from each of the packet separately nor there is evidence to suggest that samples were taken from each of the 69 packets or even Ganja from each packet taken and mixed together homogeneously. The sample was taken only from one packet which is violation of the standing instruction by NCB and further contended that it is violation of Section 55 of the NDPS Act, hence entitle for benefit of doubt. The prosecution - 4 - has not been able to prove the charges beyond the reasonable doubts and the appellants are not required to be convicted. 6. Learned counsel for the State submits that it is well established that the Ganja was seized from the truck and a sample was taken from the seized packets and hence since the seized packets of same and similar size and shape and hence, it shall be deemed that all the material seized were Ganja and hence the prosecution has been able to prove the case. 7. Hence, after considering the respective submission of the parties, the question for consideration is whether the prosecution has been able to prove the charges beyond the reasonable doubts. Hence we proceed to consider the same. 8. However, P.W. 1 is the complainant and has stated that on 30.05.2003 he was posted at Muzaffarpur in Intelligence Office as DRI and on secret information that truck Bearing No. W.B. – 03B-0728 loaded with Nepali Ganja being taken towards West Bengal and then this witness along with his associate Deepak Kumar (P.W. 4) and S.I.O. Rakesh Ranjan (P.W. 2) Indradeo (P.W. 3) went to the National Highway 28 near Paharpur and on 30.05.2003 at about 4:20 P.M they chased container truck and caught hold of it near Chanakaya Hotel. From the said truck 69 packets Ganja was recovered in all 1335 Kgs. net weight Ganja was recovered and the truck driver Ali Akbar and the Khalasi Faiyaz Alam admitted the guilt and disclosed that they were taking the Ganja at - 5 - the instance of one Naseer Mian being lured by Rs.20,000/- for taking Ganja from Nepal to West Benga. The seizure list of the Ganja was prepared before the witness Surendra Kumar P.W. 6 and Anil Kumar has proved the signature on the seizure which has been marked as Ex. 1. 9. He has further stated in his evidence that the recovery memo has been received by Surendra Kumar (P.W. 6) and on the same there is signature of the accused persons which has been marked as Ext. 2. He has further stated that he recorded the statement of the accused persons separately which was recorded by the witness Surendra Kumar (P. W. 6) and bears the signature of accused Ali Akbar as well as the signature of the witnesses which has been marked as Ext. 3. He has also proved statement of Faiyaz Alam which was recorded by Surendra Kumar and which bears the signature of Faiyaz Alam which has been marked as Ex. 3/1. He has further stated that on the same day, the Panchnama of the seized articles were prepared and the said Panchnama was written by Surendra Kumar and the same was read over and explained, on which both the accused persons, witnesses and P.W. signed which has been marked as Ext. 4 and submitted the charge-sheet and proved the complaint petition which bears the signature which has been marked as Ext. 5. 10. He has further stated that he took three specimen samples of the seized Nepali Ganja before the two accused persons and witnesses and sent for - 6 - examination and got the report of the same and it has been reported by chemical examiner that it was a Ganja. 11. He has further stated that one of the sample packets out of three samples prepared at the time of seized kept in the office is being presented before the Court. He has proved the chemical examination report which has been marked as Ext. 7 and has also proved the envelope received containing the report in seal cover which has been marked as Ext. 7/1 and as also proved that he had prepared three packets of the sample. One packet sent to CRCL, New Delhi, the other packet was sent to the Custom Office, Muzaffarpur and one packet was kept at DRI Office and has produced the seal packet of sample kept at DRI Office containing signature of accused witnesses and has been marked as Ext. 1. He has also proved the certification of the Judicial Magistrate regarding the said seizure of Ganja. He has denied the signature that the sample was not taken correctly and was not sealed, hence from the evidence of this witnesses it is apparent that the truck was intercepted and from the truck a Ganja was seized and from the said seized Ganja three packets of sample was taken out before the witnesses and the accused persons as well as the complainant. However, it is apparent that three packets of sample were taken from one of the packets seized. P.W. 2 however, came forward to support the prosecution case of the informant / complainant and has stated that a container truck was apprehended at Paharpur near Chanakaya - 7 - Hotel bearing registration no. W.B.-03B-0728 at about 4:20 P.M and the said apprehended truck, on search, of which 69 packets 1335 Kgs Ganja was recovered and the said Ganja was seized. Statement of driver Ali Akbar and statement of Faiyaz Alam was recorded and samples were taken out. However, in cross examination he has stated that seizure list was prepared in the office and he did not remember where the Panchanama was prepared and in the seizure list, the place of seizure is mentioned and the place of seizure is at a distance of 6 K.Ms. from the office. 12. It is further stated that the driver has confessed his guilt. He has further stated that at the place of seizure the independent witnesses signed on Panchanama. He has further stated in his evidence that it is not a fact that the seizure is not in accordance with the provisions, however, in the entire cross- examination the place of seizure and the manner of the seizure has been established. However, there is nothing in evidence to display his deposition to doubt a prosecution case in any material particular or even on the point of seizure P.W. 3 Indradev, the Havildar is also a member of the raiding party and has also supported the prosecution case about intercepting the truck and recovery of 69 packets of Ganja from the said truck in all weighing about net weight 1335 Kgs. of Ganja. Preparation of seizure list and taking out the sample from the seizure and has stated that the truck and container was seized near Chanakaya Hotel and - 8 - has denied the suggestion that no seizure was made before him and he has given false evidence. P.W. 4 is Deepak Kumar, Senior Intelligence Officer who also supported the prosecution case about the recovery of 69 packets of Ganja from the said truck on interception and the said Ganja was about 1335 Kgs. Statement of driver was recorded and Ganja was recovered. He has further stated that seizure list was prepared in the DRI Office and the distance between PO and DRI Office is about 15 K.Ms. He has further stated that what the witnesses were doing near the Chanakaya Hotel he can not say, however, stated that the Panchanama was prepared. He has further stated that in the office itself seized Ganja was weighed. 13. P.W. 5 Brajbhushan Kumar, is a business man and has stated that on 20.05.2003 he was at Chanakaya Hotel, Paharpur where his friend Surendra Kumar there. Rakesh Ranjan and R.K Srivastava also came and, as stated, the truck container was apprehended and in the said truck 69 packet of Ganja was recovered which on weighing was shown to be 1372 Kgs. and has proved his signature on the seizure list, recovery memo Panchanama in each and every page. However, none appeared to cross examine the witness and hence the witness was discharged on the date fixed for cross examination on 24.04.2000. 14. P.W. 6 is Surendra Kumar, has in his chief said that on the alleged date of occurrence at 5.30 P.M he was returning from Motipur and when he reached near Chanakya hotel he saw that DRI Officials had stopped a truck - 9 - container and the truck container was opened in his presence and after seeing the same it was again closed. He in para 1 said that Officers of DRI department took him to Imlichatti along with the truck. In para 2 he has said that driver and khalasi disclosed their names as Ali Akabar and witness failed to name the Khalasi. This witness has said that from the container of the truck 60 to 70 packets of Ganja was seized which was above 1300 Kgs. This witness has said that the accused persons failed to produce any document of seized Ganja. Statements of both the accused were recorded who disclosed that they loaded the Ganja on his truck in the shop. The witness identified the signature on seizure list which was marked Ext. 6. This witness also identified the signature on seizure list which were marked Ext. 6/1, 6/2 and 6/3 respectively which are on three sheets. The witness has said that the statement of Ali Akabar was recorded by him. 15. Ext. 6. to 6/7 and then 6/8 to 6/11 on different pages are in his writing and his signature and Ext. 6/12 and 6/14 is in his writing and his signature is on the Panchanama. However, in his cross examination he has stated that he could not identify the accused as he did not remember their face and he could not identify the accused persons. 16. He has stated that in the seizure memo what has been written in which para that he cannot say. He has stated that the recovery memo was written at the instance of the officer, however it has not been mentioned in the recovery memo - 10 - that it was written in the hand writing of Rajesh Kumar Srivastava. There is nothing in the cross-examination of this witness to display the fact that it is false to show that whatever officials stated he went on recording and also denied the suggestion that he has deposed falsely after taking the money. 17. P.W. 7 Laxmi Choudhary, Godown In-charge of the Custom, Muzaffarpur he has only proved the certification regarding the destroying of the seized article and has proved Ex. 8, 9 and 9/ 1 regarding seized article and destroying of the said articles. 18. Hence, taking into consideration the evidence of P.W. 1, the informant supported the prosecution case that on the secret information intercepted the container truck and seized 69 packets of Ganja in all measuring about 1335 Kg in presence of the independent witnesses and search and seizure prepared and out of the 69 packets was also prepared or taking the sample from one of the packets out of 69 packet Ganja sent, P.W. 5 and 6 are seizure list witness and who supported the search and seizure before them and recovery of 69 packets of Ganja weighing about 1335 Kg. and even supported the prosecution case about taking sample from one of the packet out of 69 packets and three packets of sample and they proved their signature and the seizure list and sample and they have also proved the confessional statement and the confession about the recovery and the fact that the Ganja was being taken from Nepal to Bengal. P.Ws. 2, 3 and 4 are members of the - 11 - raiding party have supported the prosecution case about the recovery of Ganja from the said truck, it is apparent that the prosecution has proved that 69 packets of alleged materials were recovered from the possession of the appellants, alleged to be Ganja and all weighing about 1335 Kg. 19. Learned counsel for the appellants further contended that the prosecution case that on secret information the informant along with the raiding party proceeded to intercept and alleged to have seized and taken the sample but the seizure is not in accordance with law and the sample was not taken properly nor it was sealed properly and the Panchanama was not prepared in accordance with law and further the seizure list and the samples were prepared at the office and has deposed that the seizure list was prepared and sample was taken at the office. It has further been contended that out of the alleged seizure of 69 packets sample was taken from only one packet which is not in accordance with law. Neither there is any evidence that sample was taken from each of the packet seized and mixed together and then the sample was taken up from mixture rather the evidence is that sample was taken from one packet out of the 69 packets seized and hence contend that the seizure is defective and not in accordance with law and the instruction issued by the Narcotics Central Board NCB. It has further been contended that the I.O. as witness have stated that he sent the Ganja to Kolkatta and then stated that the Ganja was sent to New Delhi for examination and further - 12 - that the sample was taken not on the spot but at the office. 20. Taking into consideration the objection raised that the truck was apprehended but seizure list was not prepared on the spot and truck was taken to the Office of DRI, Muzaffarpur and hence it is contended that the standing instruction for preparation of seizure on the spot has not been complied and hence seizure is bad and illegal. However, it is well settled that the standing instructions have got no statutory force and are in a nature of guideline for fair procedure intended to be adopted by the I.O. of the investigation and the question is whether the procedure adopted caused prejudice to the accused persons. This view is supported in decision reported in 2002 (4) SCC 380. However, question for consideration is whether under facts and circumstances violation has caused prejudice to the accused person. The fact remains that material seized from truck on the spot and truck was taken to the office and even the witnesses along with accused came on the same truck with the seized articles. Hence when the accused remained present through out on the truck and the witnesses were also there and there is no allegation regarding transplanting and interpolating in the seized article and hence mere violation of the statutory instruction may not be a ground for vitiating the trial and it is well settled that violation of these standing instruction does not make the evidence inadmissible and the only question is to see, in such circumstance, whether violation of standing instruction cause any prejudice to the - 13 - accused. However, taking into consideration the facts and circumstances, no prejudice appears to have caused to the accused and hence the ground mentioned does not vitiate the trial or the finding recorded by lower court. 21. The next question for consideration that the witness stated that the sample was sent to Kolkatta and have been stated that it was sent to New Delhi. However, it is clear evidence that sending the sample to the New Delhi, Ext. 7, and in view of the documentary evidence of the oral evidence the report has been received from New Delhi does not prejudice to appellant hardly got any significance. 22. Learned counsel for the appellant, has further contended that the sample have been taken from only one packet out of the 69 seized packets. However, merely because there is defect in the procedure of taking sample, that may not be a ground to disbelieve the prosecution story unless the prejudice is shown to have caused, however, having regard to the fact that 69 packets alleged to have been recovered which are alleged to have contained Ganja but the sample was taken from only one packet and three samples prepared and one was sent and even has been proved which bears the signature of the witnesses and accused persons. However, having regard to the facts that the sample was taken from only one packet and which was sent for chemical examination and which has been reported by Ext. 7 that the sample sent was found to be Ganja. However, from theses facts - 14 - it can only be established that only one packet of the seized material contained Ganja whether the other packets were Ganja or has not been established as the sample was taken from only one packet. The procedure taking samples was that of taking from each of the packet or sample be taken from all 69 packets being mixed together and then the sample be sent for chemical examination. The said procedure has not been adopted, and hence, the benefit shall go to the accuse as sample from only one packet was sent for chemical examination and the sample was not taken from other packets and it is stated that it has come in evidence that the destruction of seized article has already been made which has been marked as Ex. 9 and hence only one packet Ganja is said to have established in possession of the appellants. However, assuming that each packet contains equal amount then the one packet Ganja appears to be less then 20 Kg. and hence the possession of only one packet of the material proved to be Ganja as the sample has been taken only from one packet. 23. However, the offence is of the year 2003 and the learned court below has convicted the appellants under Section 23 of the NDPS Act. However, in 2001 the law was amended and Section 23 has been categorization in 23 (a) (b) and (c) and Section 23 (a) when the offence is for small quantity 23 (b) involves quantity less than commercial quantity but grater than small quantity and (c) involves commercial quantity and for each there is separate sentence. - 15 - 24. However, amendment has been taken place in 2001 whereas offence is of the year 2003, hence applied to the fact and circumstance. However less than 20 Kg. of Ganja can be said to have been proved in possession of the appellants in the fact and circumstance of the case. However, it is pertinent to mention that case of the appellants is that there is irregularity and there is violation of instruction of NSB in taking the sample. However, merely because the direction of the NCB in collecting the sample has been violated as sample has not been taken from all the packets and hence, however merely because the direction has not been followed there is no ground to disbelieve the entire prosecution story. However, since Ganja taken from one packet then that packet can well be held to be in possession and however, the benefit to the accused to the extent can well be given that entire 1335 Ganja recovered were not Ganja but at least Ganja from one packet establish to be in possession of the appellants, which is established to be less than 20 Kg. and hence, the conviction of the appellants can well be interfered under Section 23(b) of the NDPS Act for being in possession of Ganja more than small quantity and less than commercial quantity and in that circumstance the conviction under Section 23 is modified for offence under Section 23(b) of the NDPS Act consequently the sentence to undergo rigorous imprisonment for 15 years and fine of Rs.1,50,000/- is not sustainable and is set aside as the punishment provided under Section 23(b) is only