CRIMINAL APPEAL (DB) No.1068 OF 2009 With CRRIMINAL APPEAL (DB) No.1069 oF 2009 Against the judgment of conviction and order of sentence dated 16th and 20th November, 2009 passed by Shri Shashi Bhushan Shukla, Ist Additional Sessions Judge -cum- Special Judge N.D.P.S. Act 1985, Begusarai in N.D.P.S. Case No. 14 of 2006. ****** 1. MD. HAFIZ ……………………………APPELLANT (Cr. Appeal No. 1068/09) 2. MD. NAIMUDDIN ……………………APPELANT ( Cr. Appeal No. 1069/09) Versus THE UNION OF INIDA ……………….RESPONDNETS IN BOTH THE APPEALS ************ For the Appellants :- Mr. Chitranjan Sinha, Sr. Advocate Mr. Arun Kumar, Advocate Mr. Bipin Kumar, Advocate For the Union of India :- Mr. Binay Kumar Pandey, CGC *********************** 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. These appeals have been preferred by the appellants against the common judgment of conviction and order of sentence dated 16th and 20th November, 2009 passed in N. D.P.S. Case No. 14 of 2006 by the learned Ist Additional Sessions Judge –cum- Special Judge, N. D. P. S. Act, 1986, Begusarai whereby the appellants have been convicted under Sections 20 (b) (ii) (c) of the Narcotic Drugs Psychotropic Substance Act (hereinafter referred to as the Act) and they have been sentenced to undergo rigorous imprisonment for 11 (eleven) years and fine of Rs. 1,00,000/- each and in default of payment of fine both the 2 appellants have been sentenced to undergo rigorous imprisonment for further two years. 2. Prosecution case, as lodged on the written report of Mr. G. N. P. Sinha, Inspector the informant is that on 15.11.2006 a telephonic information having been received that Ganja is coming from the Muzaffarpur side in a Fiat Car bearing registration No. BHP 375 and hence a preventive party under the supervision of Smt. K. K. Sinha, Superintendent, Custom was constituted and Several Cars, Jeeps and Trucks were checked and about 10 hours on 15.11.206 the said Fiat Car arrived there which was signaled to stop but the driver of the said car ignored the signal and thereafter, on hot chase the said car was apprehended. Two persons were found in the said car. For safety reasons the said car was brought to the custom office Barauni along with the two persons. In presence of two independent witnesses the car was thoroughly checked and found some packets were secreted under the back seat of the car. Altogether 13 packets were recovered weighing altogether 38 kg Gnaja. The seizure list was prepared and the prosecution report was filed. On the basis of prosecution report cognizance was taken on 21.12.2006 against the appellants and charge was framed against them on 15.6.2007. 3. However, during trial five witnesses were 3 examined. They are Kamla Kumari Sinha, Superintendent (PW !), Narendra Sharma, Havildar (PW 2), Kishun Paswan Havildar, (PW 3), Girish Nandan Prasad Sinha, Inspector (PW 4) and Havildar Umesh Sahni (PW 5). 4. The documentary evidences proved on behalf of the prosecution are signature of witness Girish Nandan Prasad Sinha on voluntary statement of accused Md. Hafiz (Ext.1), signature of witness Girish Nandan Prasad Sinha on forwarding report of the accused persons (Ext.1/1), forwarding report of accused persons (Ext.2), brief facts of the case (Ext.3), signature of witness Girish Nandan Prasad Sinha on voluntary statement of accused Md. Naimuddin (Ext. 1/2), signature of witness Girish Nandan Prasad Sinha on history sheet of accused Md. Hafiz (Ext1/3), signature of Girish Nandan Prasad Sinha on history sheet of accused Md. Naimuddin (Ext. 1/4), Arrest Memo of accused persons (Ext. 4), Panchnanam of Ganja, Car, owner book, stepeny and key etc. (Ext. 5), detention/seizure memo (Ext.6). Though there is no exhibit 7 but the judgment mentions about report of the chemical examination of the seized Gnaja as Ext. 7 but the same was not signed by the Presiding Officer. The order sheet also not mentions that how it has been exhibited. 5. Considering the oral and documentary evidences adduced on behalf of the prosecution the learned 4 trial court found the appellants guilty and passed the judgment of conviction and order of sentence as stated at the outset. 6. Learned counsel for the appellant, however, contended and challenged the judgment of conviction and order of sentence on various counts regarding the non- compliance of Section 41 and 42 of the Act. However, the main attack of the appellants is on the non-compliance of Section 55 of the Act that the procedure for the seizing, sealing and sampling of the seized article has not been complied with on the report and there is no evidence that the seized article was ever sealed or sealed sample sent by the prosecution for chemical examination. Further it has been contended that the chemical examination report has neither been received nor has been proved in the case in accordance with law and hence whether the seized articles were Ganja or not has not been established by the prosecution and this has caused prejudice to the appellants. 7. Learned counsel for the State however, contended that the prosecution has been able to prove the charges beyond all reasonable doubts. 8. Now question for consideration is whether the prosecution has been able to prove the charges against the appellants beyond reasonable doubts or not. 5 9. Hence we proceed to consider the evidence in the light of the statement given by PW 1 Smt. K. K. Sinha. She is the Superintendent and under whose supervision the raiding party was said to be constituted by the prosecution. However, PW 1 is the Superintendent and she has stated that she got information that a FIAT Car bearing registration No. BHP 375 has proceeded from Muzaffarpur and so a raiding party was constituted and started checking the vehicles and waiting for BHP 375 and the said vehicle was caught at about 10.00 A.M. However, she has stated that at the time of raid she was not on the spot as she has left the team. She has admitted that none was arrested before her at Satanpur and when she reached at Barauni Office then the seizure list was prepared at the Barauni Office and seized articles were weighed as 38 Kg in 13 packets. At that time she saw the packets that the packets were not sealed but they are tide with a rope. There was no seal of the department. 10. PW 2 though has supported the prosecution case about the apprehension of the said vehicle after chase and the Ganja was recovered from the beneath of rear seat and it was 13 packets of Ganja weighing 38 Kg and the same was seized. The statement of the accused persons were recorded and said seizure was made at the office and nothing was recovered from the possession of the 6 appellants except the Ganja from the vehicle. This witness has further stated that Ratanpur Chowk is situated 42 kilometers away from the custom office Barauni. 11. PW3 has also supported the prosecution case about the apprehension of the said vehicle and recovery of Ganja weighing about 38 kg. and the said vehicle was apprehended and then caught after chase and it was brought to the custom office and there the Ganja was seized. However, this witness in his evidence in paragraph 23 and 24 of his deposition has stated that the said bag was sealed but no mention in his evidence about the sampling of the seized article. 12. PW 4, however, also supported the prosecution case about the apprehension of the said vehicle and disclosed about the Ganja which was recovered from the back seat in 13 packets weighing about 38 Kg. and the seizure list was prepared. A memo or arrest was prepared on arrest of the accused persons. He further stated that no seizure list was prepared at the place where the vehicle was stopped but the seizure list was prepared in the office. However, he has stated that the said Ganja was sealed and each packet was not opened. 13. PW 5, however, stated that Ganja was recovered from the car which was in 13 packets about 38 Kg. However, prosecution case is that the Ganja was 7 recovered from the rear seat of the car. 14. Though the witnesses have stated that the said car was apprehended and after chase it was caught hold and two persons found in the car were arrested. The memo of arrest was prepared and the Ganja recovered was brought to the custom office where the search and seizure was done. The Ganja was sealed. However, in the entire evidence there is no iota of evidence regarding the fact whether out of the said Ganja any sampling was made or whether the sampling was made from each packet separately or after taking Ganja from each packet for mixing it. There is no evidence at all regarding the sampling out of the Ganja seized and whether the said sample or any sample was ever sent for the chemical examination and there is no evidence of any witness that the report from the Forensic Science Laboratory or from any other Chemical analysis was received. However, the examination report of sample given by the Government Opium and Alkaloid Works, Ghazipur (U.P.) dated 23.11.2006 has been submitted before the Court by G. N. P. Sinha which is kept on record. However, the said report in the judgment has been shown to be marked as Exhibit-7 but the said exhibit does not bear the signature of the Presiding Officer and the report itself mentions that it received one sealed envelope of sample but no covering 8 letter enclosed. 15. Learned counsel for the appellants, however, contended that this document was never proved and there is no mention in the order sheet that how it has been marked as exhibit though in the judgment it has been mentioned as a document marked as Ext.7 However, the order dated 25.7.2009 shows that the prosecution was directed to get marked the analyst report under Section 165 of the Evidence Act with further permission to examine prosecution witness Umesh Sahni Hawaldar and Rameshwar Prasad Hawaldar but there is no mention in the order sheet about the marking that document as Ext. 7. Hence from the entire records it appears that there is no mention in the order sheet about its ever marking as Ext.7 and hence there is no evidence of prosecution witnesses that they took any sample from the seized articles or sent it to the Forensic Science Laboratory for chemical analysis. Entire record also does not suggest that from the Court any time permission was ever taken for sending the sample and also there is no mention in the record or evidence about sending of the samples. Though the seizure has been proved but the independent seizure list witnesses have not ever been produced for their examination as a witness and the search and seizure has only been proved by the police officials and no independent witness has 9 come forward to support the search and seizure from the possession of the appellants or from the vehicle hence having regard to the facts and circumstances that since no witness has ever been produced to prove the search and seizure and further there is no evidence about the sampling either at the place of occurrence or at the custom office where the search was made and there is no any evidence in the entire record to suggest that the sample was taken from the seized article or was ever sent to the Forensic Science Laboratory nor there is any mention that whether the sample was taken from each packet or from one of the packet or from the mixture of Ganja taken from each packets and hence this link is missing which is a most essential part to prove that seized article was Ganja or rely on the report received that the report is with regard to seized article whereas in the facts and circumstances of this case that the report of the Chemical Examination has also not been proved by legal and reliable evidence and hence it causes great prejudice to the appellants and it is apparent that Section 55 of the Act has not been compiled. 16. Hence having regard to the facts and circumstances, we find and hold that the prosecution has not been able to prove that the sampling was made from the seized Ganja or the was ever sent for chemical examination and the report of the chemical examination 10 also have not been found proved and hence the link to establish that the seized articles were Ganja has not been proved beyond all reasonable doubt and this has caused great prejudice to the appellants and hence we find and hold that the prosecution has not been able to prove the charges beyond all reasonable doubts. 17. Accordingly, the judgment of conviction and order of sentence as stated at the outset is set aside and these appeals are allowed. Since the appellants are in custody, they are directed to be released forthwith if not wanted in any other case. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.) Patna High Court, Patna Dated 10th May, 2010 avin/N.A.F.R.