CRIMINAL APPEAL No.766 OF 2009 -------- Against the judgment of conviction dated 08.09.2009 and order of sentence dated 11.09.2009 passed by Sri A.P. Tripathi, learned Additional Sessions Judge-cum-Special Judge, N. D. P.S. Act, Kishanganj in Special Case No. 10 of 2006, Tr. No.05/06 arising out of Kishanganj Unit Case No.09/KNE/NDPS/06-07. -------- 1. Nati Sharma, Son of Krishna Prasad. 2. Rajan Chouhan, Son of Ghanshyam Chouhan. Both residents of village-Purum, P.O.-Pangei, P.S.-Lamlai, District- Senapati(Manipur)............Petitioners/ Appellants. -Versus- The Union of India through Department of Customs. ................... ............Respondent. -------- For the Appellants : M/S. Vikram deo Singh, Radha Mohan Singh, Ramesh Kumar Singh, Sanjay Kumar Singh, Advocates. For the Union of India : Mr. D. Surendra, C. G.C. -------- P R E S E N T THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH -------- D.K.Singh,J The two appellants are aggrieved by the judgment of conviction dated 08.09.2009 and order of sentence dated 11.09.2009 passed by the learned Additional Sessions Judge-cum- Special Judge, N.D.P.S. Act, Kishanganj, in Special Case No. 10 of 2006, Tr. No. 05 of 2006 (arising out of Kishanganj Unit Case NO.09/KNE/NDPS/06-07)whereby the appellants have been convicted under Section 20(b)((ii)(c) of the N. D. P. S. Act (which has been typed in the judgment as under Sections 20(b)(c) of N.D.P.S. Act) and 2 sentenced to undergo rigorous imprisonment for 10 years and pay a fine of Rs. 1,00,000/- each and in default of payment of fine further the convicts were directed to undergo rigorous imprisonment for one year each, however, the sentences were directed to run concurrently if the convicts fail to deposit the amount of fine and the period undergone by the convicts during the trial were directed to be set off. 2. The prosecution case is that on 16.06.2006 a specific information regarding illegal trafficking of Ganja by a Mahendra Bolero jeep was received in the office of Customs (P) Kishanganj. In pursuance to such information, a team of Customs (P) Kishanganj preventive officers under the leadership of Superintendent of Customs (P) Kishanganj (P.W.6) was constituted to intercept the said Bolero vehicle and for that purpose the preventive team members came near Pothia More on N.H.31 and ambushed themselves. On seeing the Bolero vehicle the preventive team members came on the road and gave signal to stop but the driver instead of 3 stopping speed up the vehicle. Then the preventive members chased and ultimately the Bolero vehicle being registration No. WB-77-5986 was intercepted at Viprit Chowk alongwith two occupants in the vehicle. The purposes of intercepting the Jeep was disclosed to the occupants, then members of the preventive team gave option to the occupants for being searched in presence of Magistrate or Custom Officer to which they consented for being search in presence of customs officers. The alleged seized vehicle was brought to custom office at Kishanganj alongwith its two occupants for thorough search and other legal formalities. The occupants disclosed their identity as Nati Sharma(appellant no.1) and Rajan Chouhan(appellant no.2)being Khalasi and driver respectively of the vehicle. On enquiry both the persons denied the presence of any contraband in the Jeep then in presence of two independent witnesses, namely, Raju Das (not examined) and Md. Aiyub Ansari (P.W.7) search was made and 91 packets 4 of Ganja wrapped in polythene sheets of various sizes were found concealed in the ceiling and the gate of the said Bolero vehicle. Apart from the contraband the registration and Insurance papers of the vehicle were also recovered. Then in presence of two independent witnesses the recovered material was weighed and found to be 186 Kg. worth Rs. 3,72,000/- accordingly the Panchanama was prepared on which the signature of two accused and the two independent witnesses, namely, Raju Das ( not examined) Md. Aiyub Ansari ( P.W.7) were obtained. Thereafter the alleged contraband alongwith the Bolero Jeep being registration No. WB 77-5986 were seized and a seizure list (Ext. 4) was prepared on 16.06.2006 itself. 3. Consequently, on 17.06.2006 the Inspector, Basuki Nath Sahay,(P.W.6), forwarded the aforesaid two arrested accused persons to the learned Special Judge-cum- Additional Sessions Judge, Kishanganj, for remanding them to judicial custody and for a leave to file a complaint petition after completion of the investigation. In the forwarding report also it was admitted that 5 the vehicle was intercepted at 7.00 A.M. on 16.06.2006 near the Viprit Chowk and 186 Kg. of Ganja was recovered. Subsequently, the complaint was filed on 29.08.2006 with the signature of Basuki Nath Sahay, the Custom Inspector(P.W.6) in the court of the learned Special Judge-cum- Additional Sessions Judge, Kishanganj, which was numbered as Special Case No. 10 of 2006 which stipulates that on secret information on 16.06.2006 a Bolero Jeep having its registration No. WB-77-5986 was intercepted on chase at Viprit Chowk from which 186 Kg. of Ganja in 91 packets concealed in the ceiling and gate of the vehicle were recovered and a Panchanama, was prepared and statement of two apprehended persons, namely, driver and Khalasi was recorded in presence of two independent witnesses and from the documents on record it appears that one Jagarnath Adhikari is the real owner of the seized vehicle hence he was also made accused. Consequently, the learned Special Judge-cum- Sessions Judge, Purnea, on the basis of complaint vide order dated 6 04.09.2006 took cognizance under Section 20(b)(ii)(C)of the N. D. P. S. Act against three accused persons, namely, Nati Sharma(appellant No.1, Khalasi), Rajan Chouhan (appellant no. 2, driver) and Jagarnath Adhikari(not put on trial) the owner of the vehicle. On 13.11.2007 the learned Special Judge-cum-Sessions Judge, Purnea, framed charges under Section 20(b)(ii)(C) of the N.D.P.S.Act. 4. In order to prove the case, the prosecution examined seven witnesses of which P.W.1 is Chandra Bhushan Prasad, the constable of Custom Department P.W.2 is Ramesh Lal Das, the Superintendent of Custom, Kishanganj leader of trap team P.W. 3 is Niteshwar Prasad Singh, the constable of the Custom Department P. Ws. 1,2 and 3 were the members of raiding party P.W.4 Bipin Kumar, P.W.5 Bhagwat Hembram are the constables in the Custom Department, P.W.6, Basuki Nath Sahay, is Inspector Customs (the complainant) and P.W.7 Md. Ayub Ansari is the seizure list witness. 5. No defence witness has been examined. 7 6. Heard learned counsel for the appellants, Mr. Bikramdeo Singh and learned counsel for the Union of India, D. Surendra. 7. P.W.1 was member of the preventive team and has said that 91 packets weighing about 186 Kg. of Ganja was recovered. In cross-examination this witness has said that search and seizure memo was not prepared at Viprit Chowk. P.W. 2 is the custom superintendent in whose leadership the preventive team party went to Pothia More when Bolero vehicle was intercepted on chase at Viprit Chowk and due to security reason seized vehicle was brought to Kishanganj. The sample of Ganja was drawn by the Inspector. The samples were sent to Forensic Science Laboratory, Gaziabad and the report was obtained. In paragraph no. 5 of deposition P.W. 2 has specifically stated that hear the Pothia More there were Islampur Custom Office, police station and the court but he did not inform either to the custom office or to the police station when the vehicle was intercepted. P.W. 2 admits that there were some people on the place of seizure. This witness has further admitted 8 that both the occupants of the Jeep were brought to Kishanganj customs and Viprit Chowk is within the territory of West Bengal. In paragraph no.7 P.W.2 has admitted that for search being made at Kishanganj custom office no consent was obtained from the accused persons. P.W. 3 is constable in the custom department of East Champaran who admits about the inspection of the Jeep and the recovery of the alleged contraband in 91 packets. In paragraph no. 4 this witness admits that where the vehicle was intercepted there were 10-12 people. In paragraph no.5 this witness has said that the Ganja was weighed in presence of the accused. P.W. 4 is the constable of Kishanganj Custom office and was a member of the preventive party P.W.4 further admits in paragraph no. 1 that the seized vehicle was brought to Kishanganj where the seizure was made. P.W. 5 is the constable of Forbesganj custom office and was member of the preventive team and has stated in paragraph no.1 that 90 packets of Ganja was recovered. 9 In paragraph no. 3 this witness has stated that samples were drawn by the officials. He has sated that he can not say that the accused were brought to the custom office or not. P.W. 6 is the complainant who constituted the preventive team and was a member of the preventive team. In paragraph no.3 this witness has stated that 91 packets of Ganja was recovered in Kishanganj office from the roof and the gate of the vehicle weighting 186 Kg. In paragraph no.4 this witness has stated that the alleged seized contraband was weighed but he has not said that who weighed the alleged contraband. In paragraph nos. 5 and 11. P.W.6 has stated that the samples were taken from 5-7 bags by random sampling out of which three samples were prepared but none of packets were certified by this witness nor the quality of alleged seized Ganja was mentioned. In paragraph no. 13 this witness has stated that the alleged seized contraband was not produced in the court and this witness is not knowing whether the alleged Ganja was destroyed or not. 10 P.W. 7 is seizure list witness and in paragraph no. 3 he has admitted that at the relevant time he was driving the private vehicle of the custom inspector whereas the other seizure list witness has not been examined. From scanning the evidences of the witnesses it appears that P. Ws. 1 to 6 are the officers and constable of the customs. Only P.W. 7 whom the prosecution claims to an independent witness also appears to be interested witness by virtue of his own admission that at the relevant time he used to drive the vehicle of the custom Inspector. Learned counsel for the appellants submits that the consistent case of the appellants is that they had come to Gowhati in search of livelihood where they were entrusted the vehicle in question by one known driver for reaching the same to Maldah but the appellants did not know that in the Bolero Jeep the Ganja was concealed in the ceiling and the gate nor they were aware about the owner of the vehicle. This stand was taken by the appellants in their interrogatory statements as contained in 11 Exts. 2 and 2/1 as well as in the voluntary statement as contained in Ext. 2/2. The further stand of the appellants is that never any weight was taken and on presumption the weight was recorded, seizure was not made in presence of the appellants and the sample drawn were contrary to the prescribed norms as only from 4-5 packets samples were drawn. It is further contended that the appellants denied the recovery and any knowledge with regard to the seized contraband being concealed in the vehicle in question in their statement under Section 313 Cr.P.C. 8. It is contended on behalf of the learned counsel for the appellants that the vehicle in question was intercepted at Viprit Chowk which is admittedly in the State of West Bengal whereas actual seizure was made in the custom office of Kishanganj hence the seizure list was admittedly not prepared at the place where the vehicle was intercepted. As per the instructions issued by the Ministry of Finance vide Memo No. (DR) letter F. No. 664/23/89 OPIU dated 22.06.1989 and as per the provision of N. D. P. S. Act as well as several pronouncements the seizure list 12 should be prepared where the actual seizure is made but these guidelines can be deviated when it is not possible to make seizure at the place of interception. It is further contended by the learned counsel appearing on behalf of the Union of India that it was not possible to make seizure at Viprit Chowk hence seizure was made at Kishanganj. So far as the evidence on this point is concerned, no specific reason has been assigned by P. Ws. except that P.W.2 in paragraph no.2 of his evidence that for security reasons the vehicle was brought to Kishanganj office. It is true that no specific explanation has been given for not making the seizure at the spot or no specific reasons have been assigned which prevented in actual preparation or making seizure list at the place of seizure but due to non-preparation of the seizure made at the actual place where the vehicle in question was intercepted I do not think that any prejudice has been caused to the accused because there is no allegation on behalf of the accused persons that any tampering was made but it slightly gives 13 negative inference with regard to conduct of the trap team. In this regard the Hon‟ble Supreme Court in the case of Khet Singh Vs. Union of India reported in 2002(4) S.C.C.380 in paragraph no.10 has clearly held that the instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of 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. 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 mazahar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself or when the seizure is effected at the place where there are no witnesses available or there is no facility for 14 weighing the contraband article or other requisite facilities are lacking. Hence, in such situations, 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 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 taken into custody. In the instant case admittedly as per the evidence of P. Ws. the vehicle in question alongwith contraband was taken into 15 custody at Viprit Chowk and actual seizure was done at Kishanganj custom office more than 15 K.M. away from the spot of interception but neither in the Panchnama nor in the seizure memo nor in the forwarding application or in the complaint filed before the Sessions judge any reason was assigned which creates suspicion. With regard to contention of the appellants of not-adopting the fair investigation by the prosecuting agency, in my view, in evidence it has come that Pothia More where the complainant started chasing the vehicle in question nearest custom office was at Islampur but neither information was given to Islampur Custom office or police station nor the seizure was made there. It appears that Pothia More is situated within the territorial jurisdiction of the State of Bihar and the Custom officials started chasing the vehicle from territorial jurisdiction of the State of Bihar but ultimately the vehicle was stopped and actual seizure made at Viprit Chowk which is within territory of West Bengal. I do not find the contention of the 16 learned counsel for the appellants correct that the Bihar Custom officials have no territorial jurisdiction. In such situation, when chase had started from the territorial jurisdiction of Bihar and ultimately interception was made in West Bengal the Kishanganj custom official had the jurisdiction to do so. It is well settled law that N.D.P.S. is a stringent Act hence the procedural safeguards must be followed meticulously otherwise it vitiates the prosecution case. The seizure is admitted but out of seven P. Ws., no witness has come forward to suggest that actually who weighed the alleged seized contraband as P.W. 2 has only stated that net weight of 91 packets was 186 Kg. but has not stated that who weighed it and from which weighing equipment it was weighed and no seized contraband has been produced in the court. In the similar manner P.W. 3 in paragraph no. 5 has said that different packets had different weights but has not said that who weighed the contraband. P.W. 6 in paragraph no. 4 has said that the weight of the alleged seized contraband was taken to 17 be 186 Kg. but he has not stated that who weighed it. P. Ws. 1 and 7 has not said anything about the weight of the alleged seized contraband hence after scanning the evidence in my opinion the actual weight of the seized Ganja has not been proved. 9. The other contention of the learned counsel for the appellants is that the sample of the seized contraband has not been drawn in prescribed procedure which vitiates the entire prosecution case. 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. Consequently, on 22.06.1989 Ministry of Finance issued directions in the background when it was brought to the notice of the Finance Ministry that the different 18 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, despatch 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 also become an issue at 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 secure 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 issued which are as follows: SECTION II “GENERAL PROCEDURE FOR SAMPLING, STORAGE, ETC. 2.1. All drugs shall be properly 19 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 (Panchas) and the person 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) 20 from a particular lot, it must be ensured that representative sample are in equal quantity 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 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 S. 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‟, to be sent to the chemical laboratory concerned. Despatch of samples for testing : 21 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 Revenues Control Laboratory 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 22 shall also be preserved for evidentiary purposes”. 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 drawing the sample from all the seized bags/packets or by amalgamating the whole seized contraband and make it a composite whole 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. But admittedly as per the evidence of P.W.6 in paragraph no.11 it is apparent that the samples were taken randomly from 5-7 packets which are as follows: “11.iz’u%& D;k lHkh 91 iSdsVksa ls Sample fy;k Fkk? mRrj%& th ughaA ge yksxksa dk fu;e gS fd 5&7 random aiSdsVksa ls sample ysdj feyk;k tkrk gS rFkk Sampling ?kj tkap gsrw Hkstk tkrk gSA rhu iSdsV sample cuk;k x;k FkkA fdlh iSdsV esa esjs }kjk certificate ugha fy;k x;k Fkk D;ksafd izko/kku ugha 23 gSA rhuksa sample iSdsV esa vfHk;qDrksa dk gLrk{kj fy;k x;k FkkA Sample iSdsV ij xkatk dh DokfyVh ugha fy[kk x;k FkkA iSdsV esa seal dks fd;k x;k FkkA dksbZ vyx ls fu’kku ughaA xkatk esa ugha fy[kk Fkk fd og ns’kh gsS ;k fons’kh !” Hence it is apparent that the samples were not drawn as per the prescribed procedures and total 91 packets were seized of different sizes which has been admitted by the witnesses particularly P. Ws. 2 and 6. Calculating the average weight of seized packets in view of total weight as 186 Kg.then the average weight of one packet would be about 2 Kg. or little more than 2 Kg. Accepting the evidence of P.W.6 that from 5-7 packets