CRIMINAL APPEAL No.967 OF 2008 (DB) ----- Against the judgment of conviction dated 30.07.2008 and order of sentence dated 02.08.2008 passed by Sri Kameshwar Nath Rai, Ist Additional Sessions Judge, Gaya in N.D.P.S.Case No. 5 of 2006 arising out of Barachatti P.S.Case No. 25 of 2006. ----- VIDYANAND KUMAR SON OF LATE VISHNU MAHTO RESIDENT OF VILLAGE BHAGHAR,POLICE STATION, BARACHATTI,DISTRICT GAYA ---- APPELLANT VERSUS THE STATE OF BIHAR ---- RESPONDENT ----- For the appellant : Mr.Rajendra Mishra, Advocate For the respondent: Mr.Ashwini Kumar Sinha,Addl.P.P. ----- P R E S E N T THE HON'BLE MR.JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR.JUSTICE GOPAL PRASAD ----- S.K.Sharma & Gopal Prasad,JJ. Sole appellant Vidyanand Kumar has preferred this appeal against the judgment of conviction and order of sentence dated 30.07.2008 and 02.08.2008 respectively passed by Ist Additional Sessions Judge, Gaya in N.D.P.S.Case No. 5 of 2006 by which he has been convicted under Section 20 (b) of Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred to as ”NDPS Act”) and has been sentenced to undergo rigorous imprisonment for 12 years and a fine of Rs.1,00,000/- and in default of payment of fine, he has been directed to further undergo rigorous imprisonment for six months. 2. The prosecution case, in brief, is that on 09.02.2006, the informant 2 Jagannath Rai, Sub-Inspector of Police, Barachatti police station while was in law and order duty on the eve of Muharrum at Sulebatta ground along with other police officials including ASI Suraj Mistri (P.W.5) and constables Manoj Singh (not examined), Prayag Yadav (not examined), Bipin Paswan (P.W.4), Upendra Kumar (P.W.3) and Ram Awadhesh Singh (not examined) got confidential information that two young men having ganja in two attaches and three jute bags were waiting to board on a bus in front of closed Line Hotel belonging to Sita Ram Mahto of village Bhagahar. The informant along with others police officials rushed to the spot but two young men started escaping at the sight of police jeep itself, out of whom one namely, appellant, was apprehended on chase by the police member who disclosed his own name and the name of his associate as Puran Yadav who managed to escape. In presence of independent witnesses, namely, Yogendra Prasad (P.W.1) and Pramod Kumar (P.W.2), the appellant disclosed that there is ganja in attaches and jute bags and these 3 were being carried by him and his associate Puran Yadav for sale to Rajasthan. He also admitted that they were waiting to board a bus in front of close line hotel of Sita Ram Mahto. The recovered ganja weighing 50 Kgs. was seized in presence of local witnesses. The seizure list was prepared which was signed by the appellant also. No valid paper was produced by the appellant to show about the ownership of ganja. 3. Informant S.I. Jagarnath Rai (P.W.6) recorded his self statement on 9.2.2006 at 5.00 P.M. on the spot and on the basis of self statement of the informant Barachatti P.S.Case No. 25 of 2006 dated 09.02.2006 was registered against the present appellant and one Puran Yadav under Section 20 of the NDPS Act. The matter was investigated into and after completion of investigation, chargesheet was submitted against both the accused under Section 20 of the NDPS Act. Cognizance was taken under the aforesaid section and the case was transferred to Additional Sessions Judge Ist, Gaya for disposal. Charge under Section 20(b) 4 of the NDPS Act was framed against both the accused and they pleaded innocence. Hence trial proceeded. 4. In order to prove its case the prosecution examined seven witnesses. They are : P.W.1 Yogendra Prasad, P.W.2 Pramod Kumar, P.W.3 Upendra Kumar Singh, P.W.4 Bipin Paswan, P.W.5 ASI Suraj Mistry, P.W.6 S.I. Jagannath Rai, the informant and P.W.7 Braj Kishore Mishra. 5. The trial court after considering the entire evidences available on record and taking into circumstances other facts and circumstances of the case, found the appellant guilty and sentenced him, as stated above. As the prosecution could not prove the charge against another accused Puran Yadav, he was acquitted by the same judgment. 6. We have to see whether the prosecution was able to prove the charge against the appellant beyond the shadow of all reasonable doubts or not. 7. P.W.1 is a seizure list witness. His signature is there on the seizure list but he has not supported that the seizure was 5 made in his presence, rather he has stated in paragraph 3 of his evidence that 50 Kgs of ganja was not recovered in his presence. He has further stated that his signature was taken on a plain paper. Another seizure list witness is P.W.2 who has merely admitted his signature on the seizure list but declined that any seizure was made in his presence. P.W.3 Upendra Kumar Singh was posted as Constable at Barachatti Police station and he was one of the members of raiding party. This witness has not supported the prosecution case, rather he has stated in his evidence that one accused was caught and three persons fled away but the informant in the first information report and in his evidence has stated that one person was caught and another was escaped. P.W.3 in paragraph 3 has stated that he did not identify any of the accused and this witness has not identified the appellant in dock. He denied that his statement was recorded by the Officer-in- charge or by the Investigating Officer. So this witness was declared hostile and as such his evidence cannot be relied upon. 6 8. P.W.4 Bipin Paswan is another constable who was posted at Barachatti police station at the relevant time. He was also a member of the raiding party. He has stated that ganja was recovered near a line hotel but no one was present near the ganja. This witness ruled out presence of the appellant at the time of seizure. He has denied that any statement under Section 161 of the Code of Criminal Procedure was recorded by the Investigating Officer. 9. P.W.5 Suraj Mistri was posted as ASI at Barachatti police station at the relevant time and he was a member of raiding party. He has also not supported the prosecution case and he has merely stated that ganja was seized in his presence though he has stated that appellant was apprehended in presence of police witnesses P.Ws.3 and 4 but P.Ws. 3 and 4 who were also members of the raiding party declined that the appellant was apprehended in their presence. This witness was the Investigating Officer of the case also who after completion of investigation has submitted chargesheet 7 against two accused persons including appellant. There are catena of decisions that a member of the raiding party should not investigate the case and on that basis it has been argued that the investigation itself was bad. It will also be discussed later on. 10. P.W.6 SI Jagannath Rai is the informant of the case and he was members of raiding party also. This witness has supported the prosecution case that ganja was seized in presence of independent witnesses as well as in presence of members of the raiding party. 11. The attache and jute bags with ganja were produced in court and these were marked as Material Exhibits but the prosecution has not been able to explain as to why members of the raiding party has not supported the prosecution case regarding presence of the appellant at the time of seizure. The members of raiding party were government servants, they were constables and they have declined that the appellant was present at the time of seizure. Evenif the statement in paragraph 10 of P.W.6 is 8 accepted, then he in his evidence has stated that the petitioner was apprehended at about a distance of 200 yards from the place ganja was seized. There is no evidence that the appellant was fleeing away at the sight of police after leaving ganja, rather only evidence of P.W.6 in paragraph 10 that the appellant was apprehended at a distance of 200 yards from the place of seizure. He has not seen the appellant escaping from the place of seizure, rather the apprehension was only because the appellant was fleeing way and it was suspected that he might be the person who was carrying ganja. In the present case, there is major lacuna that the members of the raiding party are not supporting the prosecution case. If the members of raiding party did not support the charge, then the case becomes doubtful. Not only the members of raiding party failed to support the prosecution version regarding complicity of the appellant, rather they have stated that the appellant was not present at the time when ganja was seized. The prosecution has been able to prove that there was seizure of 9 ganja and quantity of ganja was under the category of commercial category. These were not enough to convict the appellant. The conviction of the appellant can be justified only if the prosecution proves that it was the appellant alone who was in possession of ganja at the time of occurrence. The conviction of the appellant can be based only on the basis of testimony of single witness who has not been supported by other members of the raiding party of which P.W.6 was the leader but the prosecution has not been able to prove the charge that it was the appellant alone who was responsible for carrying ganja at the time of seizure rather his presence at the time of seizure of ganja has not been proved. Besides the contradictions, it is apparent that ASI who was a member of raiding party was made Investigating Officer. In catena of decisions, this action has been deprecated by this court and the Apex Court. 12. Considering the facts and circumstances of the case and non-support of the seizure from the conscious possession of the appellant by the raiding party, we are of 10 the view that the prosecution has not been able to prove the charge beyond the shadow of all reasonable doubts. As such, the appellant deserves to be acquitted. 13. In the result, this appeal is allowed and judgment of conviction and sentence is set aside. The appellant is acquitted of the charge. Since the appellant is in jail custody, he is directed to be released forthwith if not required in any other case. ( Shyam Kishore Sharma, J.) ( Gopal Prasad, J.) Patna High Court, Patna The 8th April, 2010 Tahir/-(NAFR).