CRIMINAL APPEAL No.82 OF 2007 (Against the judgment and order dated 18.12.2006, passed in Excise Case no. 27 of 2001/12 of 2006 by Sri Manjur Hassan, Additional Sessions Judge III, East Champaran at Motihari) --------- (1) BUTAN SINGH & (2) PUNAM DEVI----------------------------(Appellant) Versus STATE OF BIHAR---------------------------------------------------- - (Respondents) For the appellants: - Mr Anil Kumar, Advocate. For the State: - Mr Satnarayan Prasad, Advocate. --------- P R E S E N T THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH S.P.Singh,J. Appellants filed the instant appeal against judgment and order dated 18.12.2006, passed in Excise case no. 27 of 2001/12 of 2006 by Sri Manjur Hassan, leaned Additional Sessions Judge III, East Champaran Motihari, whereby appellants named above have been convicted for offences under sections 20(b)(II) and 20(b)(II)(C ) of the Narcotic and Psychotropic Substance Act (NDPS Act) and sentenced to under go rigorous imprisonment (RI) for ten years and to pay fine of rupees one lakh ( 1 lakh) each and in default of fine to undergo further Simple Imprisonment (SI) for one year. 2. One Raj Bindu Prasad, Sub inspector and officer-in-charge of Ramgarhwa Police Station recorded his own statement at 9.45 am at Ramgarhwa Police Station giving rise to Ramgarhwa Police Station case no. 782 of 2001, dated 16.6.2001, under sections 15, 18,20,22,23,24 and 29 of the NDPS Act, 1985. The informant stated that on 16.6.2001, at about 7 am, he received telephonic information from SDPO, Raxaul, that some persons are carrying Charas from village Gulariya on Tam-tam (Horse cart). (a) After making due entry in the station diary the informant along with constables Vinay Shankar Prasad, Sanjay Rajbhat, Chandeshwar Ram, Chaukidars Deo Narayan Rai and Parma Yadav proceeded towards the site. - 2 - As soon as they reached Champapur Bazar, they saw that two ladies and four gents on board a Tonga coming from village Gulariya and going towards Champapur Bazar. On seeing police, three male occupants succeeded in fleeing. However other persons who did not flee and remained on Tonga were arrested. (b )The persons sitting on Tonga disclosed names as Champa Devi, Punam Devi, Butan Singh and Tonga man disclosed his name as Sakaldeo Mahto. On enquiry they disclosed that one of the persons who fled away was Harendera Singh. During search 2 kilograms Charas kept in yellow colour plastic cover was recovered from bag of Butan Singh. Two packets Charas were recovered from the aforesaid Tonga. The Tonga man also informed that two ladies were also carrying Charas. As there was no lady constable at that time, the informant took the two ladies to the Police Station, where they were checked by lady constable Chinta Devi in presence of independent witnesses. Three kilograms of Charas were recovered both from waist of Champa Devi and Punam Devi. ( c) The accused disclosed that Harendra Singh who escaped was owner of aforesaid Charas. After investigation police submitted charge sheet on 13.9.2001 against the four arrested accused persons. 3. After cognizance, case was committed to the court of Sessions and ultimately it was transferred to the file of Additional Sessions judge III, who tried the accused persons. It appears that accused Chamnpa Devi fled away from judicial custody prior to framing of charge and has not yet been arrested. Consequently, charge sheet under section 20(3)(II)( C) of the NDPS Act was framed against three persons in custody, namely these two appellants and the Tonga man Sakaldeo Mahto. 4. The prosecution examined seven witnesses in support of its - 3 - charge who are as follows:- PWs 1 and 2, namely, Prabhu Prasad and Tara Chand Sah are seizure list witness. PWs 3 and 4 are Parma Yadav and Deo Narayan Rai, in whose presence the alleged Charas was recovered from possession of accused persons. PW 5, namely Raj Bindu Prasad is the informant and Investigating officer of the case. PW6 is Naimuddin Ansari, the second IO of case who submitted the charge sheet. PW 7, namely, Dinesh Kumar Choudhary is a formal witness and identified the signature of Assistant Director of the Forensic Science Laboratory (FSL). Apart from the aforesaid witnesses, the prosecution adduced documentary evidence in support of its case. The relevant documents are as follows:- Exhibit 1 is signature of witness Prabhu Prasad on the seizure list. Exhibit 2 is the seizure list prepared by PW 5. Exhibit 1/1 is signature of witness Tara Chand on seizure list, Exhibit 3 is signature of informant cum Investigating officer of the case. Exhibit 4 is signature of PW 5, whereas exhibit 5 is the signature of Sri K.N. Mishra, the Assistant Director of the FSL and exhibit 5/1 is signature of Sri U.K.Sinha, regional Director of the FSL on the chemical report. 5. The trial court after considering evidence on record, convicted the two appellants for charge under section 20(B) (II) and 20(b)(III)(C ) of the NDPS Act, and sentenced them to 10 years RI, as well as fine of one lakh rupees each and in default of payment of fine, to undergo SI for one year. However, the trial court acquitted Sakaldeo Mahto, the Tonga man not finding him guilty of charge. 6. Learned counsel for the appellants submitted that the impugned judgment is bad in law and there has been violation of sections 50,52,55,57 of the NDPS Act. It is further their contention that informant himself ought not to - 4 - have investigated the case. Besides this, the prosecution case suffers from various mandatory procedural flaws. He further submits that no seal was affixed on the seized material. No report regarding the particulars of seizure and arrest was made to the immediate senior police officials. Samples had been sent for chemical examination after delay of three months. Furthermore, the samples were not drawn in presence of accused. More so they have already suffered the rigours of jail for almost about eight years. 7. Mr Satya Narayan Prasad, learned Additional Public Prosecutor representing the State of Bihar submits that 3 kilograms Charas was recovered from possession of each of the two appellants. However, he did not and could not have controverted that there has been no mandatory compliance of section 50 of the NDPS Act, so far as appellant no.2 Punam Devi is concerned. It would appear from prosecution evidence that 3 kilograms of Charas was recovered from waist of Punam Devi. Section 50 of the NDPS Act provides the condition under which search of persons would be made. This section mandates that if body of a person is to be touched for checking, then such persons should be given an option whether he or she wants to be searched in persons of gazetted officer or a magistrate. It would appear from evidence of prosecution witnesses that Punam Devi instead of being offered option for being taken to a gazetted officer or being produced before a magistrate, was instead taken to a local Police Station and searched there. 8. The procedure adopted by the informant, who is also the Investigating officer of the case is contrary to the provisions enshrined in section 50 of the NDPS Act, which is mandatory in nature. The prosecution and conviction of Punam Devi is fit to be set aside on this score alone and as such judgment of conviction passed against her by trial court is set aside. 9. So far as appellant no.1 Butan Singh is concerned, it is - 5 - submitted that his conviction too is not sustainable. Learned counsel for the appellant submits that the informant should not have himself become investigating officer of the case. In support of his submission learned counsel relied on a decision rendered in case of Bhagwan Singh Versus State of Rajasthan, reported in 1976 SCC(1) 15. He submits that prosecution has not been able to prove its case beyond all reasonable doubts. The seizure list witnesses have not supported the prosecution case and have turned hostile. Similarly, PWs 3 and 4 also deposed that no recovery was made in their presence and were also declared hostile. This leaves PWs 9 and 10 of the case. PW 6 is the second investigating officer, and his relevance is to the extent thaty he submitted charge sheet. PW 7 Dinesh Kumar Choudhary, again is a formal witness. He submits that it would not be safe to convict a person under the NDPS Act, on the sole evidence of the informant, who himself also conducted the investigation. He submits that there has been delay of three months in sending the seized articles to the court, as well as for chemical examination. He further submits that there is no evidence to show that article so seized, was kept in proper custody. No specific marks were put on sample seized during seizure for proper identification. He further submits that both the appellants are continuously in custody from the date of occurrence i.e. 16.6.2001. 10. After hearing the parties, it appears that PWs 1, 2, 3 and 4 have not supported the prosecution case. PW 6, the second Investigating officer submitted the charge sheet, PW 7 is a formal witness. This alone leaves the evidence of informant. I am in agreement with the submission of learned counsel for the State that conviction can be sustained even on solitary evidence of informant, if it does not suffer from latches and is otherwise reliable. It appears that there has been inordinate delay in sending the seized article for - 6 - chemical examination. There is also no evidence that any mark had been put on the sealed seized article. The samples were not drawn in presence of court or even accused representative before sending it for chemical examination. Even the charge sheet was submitted without obtaining FSL report. The informant ought not to have investigated the case in all fairness. Furthermore there are gross procedural irregularities adopted after seizing the contraband material. The evidence of informant is thus of not of an unflinching character. 11. Taking into account the totality of circumstances, this Court holds that the prosecution has failed to prove the charge under section 20(b)(II) and 20(b)(II) (C ) of the NDPS against the appellant Butan Singh also and as such the judgment of conviction and sentence is not sustainable in the eye of law. In the result, this appeal is allowed. Conviction and sentence passed by learned Additional Sessions Judge III, Motihari in Excise case no. 27 of 2001/12 of 2006 is set aside and the appellants are discharged of their bail bonds. Appellants are directed to be released forthwith if not wanted in any other case. Patna High Court Dated the 25th March,2009. NAFR /Shashi. (Samarendra Pratap Singh).