IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.254 of 1999 (Against the Judgment and order dated 09.09.1999 passed by the District and Sessions Judge-cum-Special Judge, Bhojpur at Arrah in N.D.P.S. Case No. 36 of 1992) ========================================================== Bhagwan Das S/o Shobha Nath Prasad, Resident of Piro, P.S. Piro, District- Bhojpur at Ara. .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s ========================================================== Appearance : For the Appellant : Mr. Mr. Ajay Mishra. (Amicus Curiae) For the Respondent : Mr. S.N. Prasad, A.P.P. ========================================================== PRESENT HON’BLE MR. JUSTICE MANDHATA SINGH J U D G M E N T Mandhata Singh, J. Heard, learned Amicus Curiae and learned counsel for the State. This appeal is filed against the Judgment and Order dated 09.09.199 passed in N.D.P.S. Case No. 36 of 1992 by the District and Sessions Judge-cum-Special Judge, Bhojpur at Arrah whereby and whereunder appellant has been convicted under Section 20 (B) (i) of N.D.P.S. Act and sentenced to undergo R.I. for four years and to pay fine of Rs. 15,000/-. F.I.R. is lodged basing written report of P.W.7, Srikant Upadhya, Officer-in-charge, Ara, P.S. Nawada which, in brief, is that on 21.06.1992 while he along with other officials was on raid in P.S. Case No. 100 of 1992 he received Patna High Court CR. APP (SJ) No.254 of 1999 dt.16-12-1999 2 confidential information that Ganja was being carried in Ambassador Car towards Piro. The Car was chased by his mobile vehicle with Police Officials. They succeeded to overtake the Car. This appellant was seating on rear seat of the Car and the same was driven by one Kameshwar Prasad who is dead now. He died before commencement of the trial. Car was searched in presence of two independent witnesses namely, Sheo Kumar and Pappu and 10 kilogram of ganja in a gunny bag and some packets in a small wooden box were recovered. Seizure list, accordingly, was prepared signed by witnesses. After trial, case is ended in conviction and sentence to this appellant for the offence under Section 20 (B) (i) of the N.D.P.S. Act. In all 7 witnesses are examined in the case. They are Seshnath Dubey, Shashi Bhushan Singh S/o Muni Singh, Sheo Kumar, Shashi Bhushan Singh S/o Ram Chandra Singh, Komal Ram, I.O. of the case, Murat Ram and Srikant Upadhya, P.W.1 to P.W.7. P.W.2 is a tender witness and there is nothing in his statement. P.W.6 is a formal witness has proved execution of Ext. 5, formal F.I.R., Ext.5(1) Signature of Srikant Upadhya on written report, Para-1 to 44 of the case diary, Exb.5/3 forensic report. P.W.4 is a witness who has produced seized ganja and cash in Court. His evidence is Patna High Court CR. APP (SJ) No.254 of 1999 dt.16-12-1999 3 relevant on the point that the produced ganja was in a sealed bag. Rest of the witnesses namely, P.W.1, 3, 5 and 7 are on the point of recovery of ganja from the vehicle in which appellant was present. Non-compliance of mandatory provisions in preparation of seizure list and custody of seized ganja are stressed on behalf of the amicus curiae. He is specific on the point that there are two seizure list witnesses. Of them, one, Sheo Kumar, P.W.3 is examined only who is not supporting the seizure by saying that he knows nothing about the incident, but he has identified his signature over seizure list, its execution is proved by its author, Srikant Upadhya and is exhibited as Ext.2. All this much has been considered by the Trial Judge and rightly has come to the conclusion that there is no infirmity in seizure and preparation of seizure list by taking into consideration the statements of P.W.1, P.W.5 and P.W.7 who all are members of raiding party also. Rest point (infirmity) is shown non-sealing of the sample and seized ganja. No doubt there is no direct evidence on the point that sample and seized ganja was sealed but forensic report, Ext. 5/3, is there to show that sample was sent in a sealed cover with spacemen of seal and tallying the both sample was examined in Forensic Laboratory and the same was found as ganja. Patna High Court CR. APP (SJ) No.254 of 1999 dt.16-12-1999 4 Sample was sent for its examination only after taking permission of the Court that can be taken that the same was informed to the Court. This lacuna was not raised in the Court below, here as discussed above I find no infirmity on this point also. So, compliance of Section 55 is there. There is no other area to doubt the conclusion reached by the trial Judge. On the point of sentence, submission is about taking of lenient view but that can be extended to 10 years with fine and only 4 years conviction is awarded. Quantity of the seized ganja is though lesser to commercial quantity but that is 10 kilogram, so I find justifying no more leniency. Considering the above discussed circumstance into consideration, the appeal is dismissed and the Judgment and Order dated 09.09.1999 passed by the District and Sessions Judge-cum-Special Judge, Bhojpur at Arrah in N.D.P.S. Case No. 36 of 1992 is hereby affirmed. Bail bonds furnished on behalf of the appellant is hereby cancelled. Appellant is directed to surrender to serve the rest period of sentence. Trial Court is directed to take initiative for arrest of the appellant. Let a copy of first page and second page of this Judgment be handed over to the learned amicus curiae. Patna High Court, Patna 16th December, 2011, Shailendra Bhushan Pd./N.A.F.R. (Mandhata Singh, J.)