CRIMINAL APPEAL (DB) No.475 OF 2007 With CR. APP (DB) No.553 oF 2007 ******* Against the judgment and order of conviction and sentence dated 15th February, 2007 and 22nd February, 2007 passed by Sri Daroga Singh, 1st Additional Sessions Judge, Muzaffarpur, in Sessions Trial no.67 of 2006. ******* In Cr.Appeal no. 475 of 2007 AJAY KUMAR SINGH-------------- Appellant Versus THE UNION OF INDIA----------- Respondents In Cr.Appeal no. 553 of 2007 M/S IDEAL AUTO CREDIT LTD. THRU. AMAL CHANDRA GHOSH --- Appellant Versus THE STATE OF BIHAR & ORS ------- Respondents ******* In Cr. Appeal no.475/2007 For the Appellants : Mr. Pramod Ban Bihari Singh For Union of India : M/s Kumar PriyaRanjan, CGC With Ranjeet Kumar In Cr.Appeal no. 553 /2007 For the Appellant : M/s Shrinandan Prasad Singh & Manoj Kumar No.I. ******* 2 P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. The appellant of former appeal, Ajoy Kumar Singh, has preferred this appeal against his conviction under Section 20(b)(II)C of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced to undergo rigorous imprisonment for fifteen years and to pay a fine of Rs.1,00,000/- (one lac), in default of payment of fine to undergo further rigorous imprisonment for three years. Both the sentences were ordered to run concurrently in Customs (N.D.P.S.) Case no.120 of 2003-04 (Trial no.67 of 2006). The latter appellant that is in Cr. Appeal no. 553 of 2007, being owner of the truck, has preferred this appeal against order of confiscation of the vehicle. Both the 3 appeals are heard together and are being disposed of by this common order. 2. Prosecution case, in short, is that on the basis of secret information received at 8.00 P.M. on 25.1.2004 that a truck bearing registration no. BR-22A/5586 is carrying Nepali Ganja concealed beneath gunny bags of sugar is likely to cross Muzaffarpur at about 10.00 P.M. on the same day. The Custom officials formed a team and moved towards Motihari at N.H.28 at about 10.15 P.M. Customs Official saw speedy truck coming from Motihari side and tried to confirm the registration number but failed due to its being muddy. On chase the truck was intercepted and number plate was verified after getting it cleaned. On the request of the driver examination of truck could not be done on the road side and considering the security it was brought to Customs Division, Muzafferpur. Two 4 independent witnesses were called. The said truck was searched before them as well as the driver of the vehicle and found that bags of Ganja (N.D.P.S) was concealed beneath the sugar bags loaded on the truck. Further keeping in mind the darkness and difficulty of unloading of the truck, further search of entire truck was kept in abeyance. In morning it resumed only after flag hoisting as next morning it was republic day. Further case of the prosecution was that four bags Ganja (N.D.P.S) were found and each bags was containing 6 packets in polythene sheet and tied with thin rope, that is sutli. Gross weight of the said Ganja found to be 205 Kilograms and net weight was found to be 204 Kilograms valued at Rs.4,08,000/0 lacs only. Three representative samples, each of 50 grams were drawn in presence of independent witnesses and the appellant, that is driver, and were kept in envelop with seal. On 5 further interrogation the driver accepted his guilt and disclosing his identity further revealed the names of the persons involved. Accordingly, offence complaint was filed, against the persons apprehended during inquiry seeking their punishment with further prayer for confiscation of the articles recovered and seized including the truck and enquiry was kept pending against other absconding. Thus, only two persons, the appellant Ajoy Kumar Singh and one Ekbal Faizee, alleged owner of sugar bags, were tried but finding no documentary evidence against Ekbal Faizee, he was acquitted, however, finding the charges established against the appellant, he was, accordingly, convicted and sentenced, as aforesaid, simultaneously sugar and truck involved was ordered to be confiscated, giving rise to the appeals. 6 3. Altogether seven witnesses, namely, Ravindra Kumar Singh, Kamal Kishore Prasad Verma, Amar Singh, Mithilesh Kumar Singh, Jai Prakash Mandal, Bhushan Kumar, and Khanna Chandra Manjhi, were examined on behalf of the prosecution before the trial court besides producing following documents as Exhibits: (i) Seizure Memo, (ii) Examination of P.W. Interogatory statement of Ekbal Faizee. (iii) Statement of Ajoy Kr. Singh (iv) Panchnama (v) Interogatory statement of Ekbal Faizee (vi)Signature of Bhushan Kr., on Seizure list. Separate discussion of the testimony of the witnesses is not required in the instant case in view of the fore-going discussion. 7 4. The learned counsel for the former appellant has submitted that there is neither proper seizure nor sampling of the materials alleged to have been recovered nor provisions contemplated under section 55 of the Act are complied with, whereas such provisions are mandatory. The learned counsel placed reliance upon single Bench decision of this Court in the case of Hira Sah Vrs. Union of India, reported in 2004(1) B.L.J. at page 110. And the learned counsel representing latter appellant further submitted in addition to the above. That this appellant, being a Company, is the real owner of the truck given on hire purchase to Mr. Amin Rashid, absconding accused, against whom this appellant has already obtained an order from Calcutta Court for realization of the sum against the agreement. This appellant and the truck has committed no offence. On the other hand, learned counsel representing 8 the respondents, submitted that provisions of Section 55 of the Act are not mandatory rather directory and placed his reliance upon Division Bench decision of Bombay High Court, reported in the case of R.D. Makwana V. State of Maharashtra; 1994 Cr.L.J. 1987. 5. It is to be seen in these two appeals whether the prosecution has been able to substantiate the charges beyond any shadow of reasonable doubt and whether the finding of the Court below require any interference. 6. The witnesses, examined on behalf of the prosecution, have stated the prosecution case and consistently stated that the truck involved in the entire episode was though intercepted at a long distance from Muzaffarpur, brought in the Custom Office, no search was made where it was intercepted. Even at the time of initial search at the 9 Custom Office no seizure list was prepared rather entire search operation was kept in abeyance till it is resumed in next morning after flag hoisting. Four bags ganja were recovered, each bags contained 6 packets wrapped in polythene sheet but accumulated and gross net weight of all the packets have been mentioned as 205 and 204 Kilograms but no pain was taken to get the packets weighed independently. Simultaneously, there is nothing on record to show that samples were prepared from each of the bags, neither packets of sample appeared to have been marked and then sealed nor there is anything mentioned regarding the remainders. No mark appears to have been given upon the bags of the packets containing the material from which samples were taken off. 7. As per prosecution case, from the truck 4 bags each containing 6 packets in polythene sheets were recovered but sample 10 from which of the packet was taken is not at all clear. All the 24 packets were not weighed independently nor properly marked. From the report of the Chemical Examiner itself it appears that one sealed envelop alone was received containing sample whereas normally it could have been 24 samples. The case is of having Ganja in commercial quantity but in absence of any independent weight and proper sampling, chemical examination of samples from all the packets, it is difficult to assume that all the packets recovered were containing Ganja and simultaneously, non-fulfillment of such mandatory requirement it is not safe to hold the appellants guilty. 8.The prosecution has also not produced anything showing of what happened to the remainders whereas under law it could have been properly sealed and kept in a safe place as prescribed in the Act and 11 thereafter on getting proper permission from the courts concerned are to be produced before the Court or disposed of but nothing of the kind appears to have been done. The chemical examination report marked Exhibit-2 also does not indicate anything regarding symbol of marking of the packets. It only contains “received one sealed envelop sample from Inspector Custom (P) Division, Muzafferpur, vide letter no.CNo.VIII(10)120/Cus/Seiz/Muz/03-04/427-28 dated 6.2.2004” and thereafter it contains the report of the Chemical Examiner indicating that the suspected article is Ganja. 9. The mandatory requirement of Section 50 of the N.D.P.S. Act which requires that if any person is apprehended and, if search is necessary, to take such person without unnecessary delay to the nearest Gazetted Officer of any of the 12 Department mentioned in Section 42 or to the nearest Magistrate. But, in the instant case prosecution has nowhere stated that any such step was taken and the apprehended person, that is the appellant of former appeal was made aware of his legitimate right to be searched in presence of a Gazetted Officer. Law of the land is very much clear that such person is to be made aware of his legal rights unless and until he declines to avail his right, search cannot be conducted. The Apex Court in the decisions reported in the cases of Kalayath Nassar V. State of Kerala, A.I.R. 2000 S.C. 733 and in Ahmad V. State of Gujarat, A.I.R. 2000 S.C. 270, has made it clear that in case of failure of mandatory requirement conviction of the persons apprehended is not sustainable. 10. It is true that the appellant, i.e., driver of the truck, during interrogation, 13 has confessed his guilt vide Exhibit-3 and such confession bears legal presumption under the Act but only when the prosecution establish that the person was in possession of contraband substance and search/seizure have been conducted after proper compliance of the provisions of law. But in the instant case due to non-observation of mandatory provision of law no such presumption is available to the prosecution. 11. Facts and circumstances, discussed above, indicates that mandatory requirements, as contemplated under the provisions of N.D.P.S. Act has not been complied with and the question as to whether provisions of Section 55 of the N.D.P.S.Act is mandatory or directory though appears not relevant in the instant appeals but at the same time the Investigating Officer cannot totally ignore these provisions as held by the Apex Court in the case of Gurubax Singh V. State of Haryana, (2001) 3 SCC 28. In 14 the instant appeals apart from the provisions, as contemplated under Section 55, other mandatory provisions have also not been complied with. 12. It is crystal clear that the manner in which the alleged recovered materials were searched, recovered and seized without giving any mark and proper sampling, creates doubt against the entire prosecution case, cutting its very root and prosecution appears to have failed to remove the dark clouds which lost sight of the court below. Thus, conviction and sentence is not sustainable. In that event, order for confiscation of the truck bearing no. BR-22A-5586, alleged to have been involved in the occurrence, belonging to the appellant of latter appeal is also not sustainable. 15 13. Thus, both these appeals are allowed and the finding of the Court below is set aside. 14. The appellant, in custody, is ordered to be released at once if not required to be detained in connection with any other case. Simultaneously order of confiscation of the truck bearing registration no.BR-22A/5586 is also set aside and ordered to be released in favour of the owner. Sd/- (Akhilesh Chandra, J.) Shyam Kishore Sharma, J. I agree. Sd/- (Shyam Kishore Sharma, J.) The 02nd April, 2010. Patna High Court, AAhmad/(NAFR)