CRIMINAL APPEAL No.2 OF 2010 Against the judgement of conviction and order of sentence dated 3.11.2009 and 5.11.2009 passed by 2nd Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No.7 of 2007 JAGANNATH PASWAN @ JAGARNATH PASWAN -----APPELLANT VERSUS STATE OF BIHAR ----- RESPONDENT For the appellant :- Sri Amarendra Nath Verma, Advocate For the State :- Sri Ashwini Kumar Sinha, A.P.P. P R E S E N T THE HON’BLE SMT. JUSTICE MRIDULA MISHRA THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Mridula Mishra & Dharnidhar Jha, JJ. The solitary appellant Jagannath Paswan @ Jagarnath Paswan was put on trial by framing charges against him under Sections 20(C), 22(C) and 23(C) of the Narcotic Drugs & Psychotropic Substances(NDPS) Act by the 2nd Additional Sessions Judge, West Champaran at Bettiah and by judgement dated the 3rd of November, 2009 was found guilty of committing the said offences. While passing the sentence on 5.11.2009 the learned Judge directed the appellant to suffer rigorous imprisonment for 15 years as also to pay a fine of Rs.1,00,000/-, else, to suffer rigorous imprisonment for three years on each of the three counts. The sentences were directed to run concurrently. The appellant appeals against the above judgement of conviction and order of sentence which was passed against him. 2 2. The informant(P.W.6)is the A.S.I. of police who was deputed in connection with maintaining law and order in Chanpatia police camp along with a contingent of police force. He stated that he had left his camp to wander around so as to maintaining law and order and in that course picked up some secret information that 5-6 persons had arrived at the house of the present appellant with ganja and were present at the residence of the present appellant. The informant stated that he along with his police force went to the house of the appellant. Seeing the police party coming, persons who had arrived at the house of the appellant started to run away into the fields in the darkness and could not be caught by the police. 3. The informant stated that he started searching the house of the appellant and while searching a thatched house which was probably used as a cattle shed, he found 11 packets made of five gunny bags lying under the heap of straw. The packets were recovered and it was stated that each packet was weighing about 20 K.Gs. and it appeared that the packets were containing ganja. The informant stated that he solicited the opinion of the other persons also on his above inference, he had drawn regarding the contents of the packets and his inference was fortified by the opinions of others. The informant alleged that it was this appellant who had consciously concealed the packets 3 along with 5-6 others who had run away so as to smuggling it across the Indo- Nepalese Border. 4. The informant stated that he brought the 11 packets to Chanpatiya police camp and sent information about the whole incident to the officer-in-charge of Shikarpur police station. The officer-in-charge of Shikarpur police station has not been examined. As such, we do not have any evidence in support of the above statements of the informant. However, it appears from the record that the fardbeyan being recorded on 9.30 P.M. by the Officer-in-Charge of the said police station the FIR was drawn up also by the Officer-in-Charge of Shikarpur police station, namely, S.I. Satyendra Prasad Singh on 2.9.2006 at 11 A.M. The investigation was handed over to P.W.5 S.I. Jamaluddin Khan. We will discuss his evidence while discussing the evidence of other witnesses who were examined during the course of trial, while considering the impact of the same on the proof of the charges. Suffice it to mention that P.W.5, S.I., Jamaluddin Khan after investigating the case submitted chargesheet sending the appellant up for trial which ultimately resulted in the judgement of conviction and order of sentence and lastly into the present appeal. 5. We have heard Sri Amarendra Nath Verma, the learned counsel appearing for the appellant and We have also heard Sri Ashwini Kumar Sinha, learned A.P.P. for the 4 State. 6. We have also been taken through the evidence of seven prosecution witnesses who were examined during the trial in addition to the two court witnesses, namely, Eklavya Paswan and Birendra Kumar Yadav who were members of the raiding party. While addressing us on the merit of the present appeal our attention was, firstly, drawn to the sampling-aspect of the case by referring to us the evidence of P.W.5, S.I. Jamaluddin Khan. It was contended that as per his evidence in paragraphs-15 to 18 it may be found that there was no proper compliance of the mandatory provisions of the NDPS Act as regards sampling of seized narcotic & psychotropic substance. It was further contended that there was a long gap between the date on which the seizure of ganja was made and the same was dispatched for chemical analysis to be Forensic Science Laboratory(FSL) and the evidence of P.W.5 rendered it suspect that the same substance which was allegedly seized had been sent to the F.S.L., Muzaffarpur for analysis and report. It was contended that the finding of the learned trial Judge appears not in conformity with the evidence and the conviction of the appellant was recorded without the respective provisions being applicable to the facts of the case under two Sections, namely, 22(C) and 23(C) of the NDPS Act. 7. The learned A.P.P. has fairly conceded that it 5 was a case in which the learned trial Judge ought not have passed the judgement of conviction or sentence upon the appellant. 8. As may appear from the very fardbeyan of P.W.6 A.S.I. Raghuwansh Singh, as also from the evidence of P.Ws.5 and 6 the article was seized from the cattle shed of the present appellant. It was seized by P.W.6 who on the day of occurrence was holding the post of the Assistant Sub-Inspector of Police. As may appear from the provisions of Section 42 of the NDPS Act any officer being an officers superior in the rank to peon, sepoy or constable of the departments of Central Excise, narcotics, customs, revenue intelligence or any other department of the Central Government including Para Military Forces or Armed Forces as may be empowered in this behalf by a general or special order by the Central Government or any such officer being an officer in a rank superior to a peon or sepoy, the constable of the revenue control, excise, police or any other department of a State Government as is empowered, if he has reason to belief from personal knowledge or information given by any person and taken down in writing that any narcotic or psychotropic substance in respect of which an offence, which could be punishable under the NDPS Act, had been committed, he may enter into and search any building conveyance or place. Thus, what may appear from the above 6 provision, which has been adopted by us in quite some detail, that P.W.6 was himself empowered to enter into the premises and make the search and seizure as may appear from Section 42(C)of the NDPS Act. However, P.W.6 was neither seizing the 11 packets containing ganja nor was preparing the seizure memo. This is the evidence and this is the prosecution case. As such, there is a complete absence of any story that independent and responsible persons of the locality were associated with the search and seizure of the 11 bags which were allegedly containing ganja. What we find, thus, is that not only the provisions of Section 42 of the NDPS Act was not complied with but further provisions formulated by law and adopted by the provisions of the NDPS Act on search and seizure like Section 100 of the Cr.P.C. was also not followed. It is true that two witnesses P.W.2 Shiv Ram and P.W.3 Ramesh Prasad respectively were produced in court and they admitted that the seizure memo bore their signatures but there is no dispute in the fact that in spite of fining the 11 bags of ganja in the cattle shed of the appellant, the same was not seized by P.W.6, otherwise a legally competent officer and was brought to the police camp from where it was shifted to Shikarpur police station. We have not been able to find from the record on account of the non-examination of Satyendra Prasad Singh, the then Officer-in-Charge of Shikarpur police station as to under 7 what contingent situation he did not even make a seizure at the police camp Chanpatia and brought it to police station as appears from the evidence both of P.Ws.5 and 6 and thereafter formally seized it and prepared the seizure memo. We are completely dissatisfied on the manner of seizure and preparation of the seizure memo and we have no hesitation in noting that the whole proceeding which was adopted by the then Officer-in-Charge of Shikarpur police station was in complete violation of the derogation of the law both of the Cr.P.C. as also of the NDPS Act. 9. The above was not the end of the matter. After considering the evidence of P.W.5 the investigating officer of the case what we further find is that there is no evidence that as to whether the seized article was really weighed and it had been kept a particular palce. There is no evidence further to indicate that the mandatory provisions of the NDPS Act, like those contained in Sections 52 and 52A were complied with by making the relevant entries in the Malkhana register and getting it further certified by obtaining the deputation of the Magistrate. There is absolutely no evidence that the Officer-in-Charge of the police station and P.W.5 the investigating officer had both gone into the Malkhana for sampling purposes and had taken out the sample together and thereafter had sealed the sampled substance by putting their respective seals. On the other hand, P.W.5 8 Jamaluddin Khan has stated that when he sampled the article it was found kept in open and in spite of having sealed it he did not put any identification mark over it. Further, the evidence of P.W.5 in para-16 is that there was no mention in the case diary that in fact the sampling had been done and any seal was put. Thus, what we find is that the evidence on sealing as given by Para-5 in para-12 may not be acceptable to us in the light of his evidence in paragraph-15. We could safely assume that it was not sealed. This could be the reason that P.W.5 was stating in paragraph-17 that the sealed sample was brought back by Chaukidar Gopal Prasad who was deputed to take it to FSL and he pointed out that the substance not being properly concealed and there being some defect in it. The FSL did not accept it. The same was returned back by the F.S.L. If this was how the sealing had been done and if a re- sampling was to be done then the same procedures were to be followed. Unfortunately, P.W.5 stated that when he again sampled the article he did not obtain the orders of the Sessions Judge, that is the Special Judge, in that behalf. Thus, we did not have any hesitation in saying that the article was not properly concealed and the evidence on it could not be acceptable to us. 10. So far as the argument on the delayed forwarding of the sampled substance to the F.S.L. is concerned, the prosecution appears not presenting 9 satisfactory and acceptable evidence on that point also. P.W.5 has stated that he had applied for seeking the permission of the Sessions Judge for sampling the substance on 27.11.2006. This evidence appears in paragraph-12 of his evidence. He has stated that the samples were drawn in presence of Sri N.K.Tripathi. We do not have any evidence as to what was the official status of Sri N.K.Tripathi. What we assume is that he might be a Magistrate as was informed by the learned counsel during the course of hearing. The law does not require the presence of any Judicial Magistrate or any Magistrate at the time of sampling. At any rate, this is not denied that the sampled articles reached the F.S.L. on 5.12.2006. It could be said that the sampling could be done only after 27.11.2006 as order of the Sessions Judge was sought for on that date but the memo which was received by the F.S.L. was dated 27.11.2006. It emerges from the admitted position that there was a delay of two months and 26 days in dispatching the substance to the F.S.L. We have already referred to the evidence of P.W.5 that when he took out the sample, the article was neither sealed nor safely secured rather it was lying in open. Thus, there could not be any certainty about the real contents of the sampled article- that it was the same substance which was found in the cattleshed of the appellant. 11. The other aspect on the analysis of the 10 substance is that the I.O. of the case P.W.5 has admitted in paragraph-19 of his evidence that he never received the report of the F.S.L. and merely on the asking of the superior officer had submitted the charegesheet. 12. We find from the above discussions that it was a case in which the verdict of guilt would not have been returned by the trial court. He could have passed an order of acquittal on account of the non-compliance of the mandatory or obligatory provisions of law. This should have been sufficient to hold that the charges had not been proved. We hold accordingly. 13. In the result, the appeal is allowed, the judgment and order of conviction are set aside and the appellant is acquitted. The appellant is in custody. He shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 15th of November, 2010, Brajesh Kumar/NAFR. ( Mridula Mishra,J. ) ( Dharnidhar Jha,J.)