Criminal Appeal (SJ) No.258 OF 2009 ---------- Against the judgment and order of conviction and sentence dated 17.1.2009 and 20.1.2009 passed by Shri Raj Kumar Srivastava, Ist Additional District & Sessions Judge, Motihari in NDPS Case No. 11 of 2006. --------- 1. Pannalal Sah, son of Lalan Sah, resident of village – Bharbharwa, Police station – Marjadwa Punssonpur, District – West Champaran, 2. Suresh Prasad Chaurasiya, son of Dhoori Prasad Chaurasiya, resident of village – Bhartamali, Police Station – Hareya (Raxaul), District – East Champaran …………. Appellants Versus The State of Bihar …………. Respondent ------ For the Appellants : Sarvshri Bakshi S.R.P. Sinha, Sr. Advocate Kumar Shashank Shekhar, Vijay Kumar Singh No.1, Advocates For the State : Shri Ajay Mishra, A.P.P. ------ P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. The two appellants were charged under section 20(b)(ii)( c ) of the Narcotic Drugs and Psychotropic Substances Act (the ‘Act’ for short) by the learned Ist Additional District and Sessions Judge, Motihari in NDPS Case no. 11 of 2006 and by judgment dated 17.1.2009 were found guilty of committing the offence. After being heard on sentence on the 20th of January, 2009, the two appellants were directed to suffer rigorous imprisonment for ten years each as also to pay a fine of rupees one lac each, in default 2 of which, each of the two appellants was to suffer simple imprisonment for two years. The present appeal assails the judgment of conviction and order of sentence passed against the two appellants. 2. The written report (Ext. 2) of P.W. 4 Rabindra Sharma, an Assistant Sub Inspector of Police posted in Rail Police station, Raxaul, was the basis of the FIR (Ext 3) of the case was drawn up and the same was investigated into by P.W. 7 Rameshwar Ram. It was stated by P.W.4 that P.W. 7, Havildar Ramashraya Harijan (P.W.3), constable Anil Singh (P.W.6), constable Devendra Singh (P.W.5) and the informant were making rounds of the platform of Raxaul Railway Station and when they were on western end of it, they found two persons coming towards the platform from its western extremity and seeing the police party, the two started retreating back. They were having bags with them, which were slinging from their shoulders. Besides, they were also having bags in their hands. On account of the luggage slinging from their shoulder and hands, they could not run fast and, as such, they were intercepted by the police party and questioned. They initially pointed out that the bags were containing clothes but their activities raised suspicion compelling the police officers to unchain them to find Nepali Ganja concealed inside them, which was weighing 80 Kg. On personal search of the appellants, they were found carrying five currency notes of hundred denomination each. 3 3. As may appear from the written report (Ext.3), the occurrence was taking place at about 3.30 A.M. on 14.1.2006 and written report was presented to P.W. 7 on the same day at 4.30 A.M., i.e., one hour back after detection of ganja inside the bags. However, as may appear from the seizure memo (Ext.4/2), the document was prepared on 14.1.2006 at 17.10 hours, i.e., after about 13.00 hours, i.e. after about thirteen hours of the discovery of the articles inside the bags. 4. P.W. 7 has stated further that he inspected the place of occurrence, got the deputation of P.W. 8 made under the orders of S.D.M., Raxaul, who came to the platform and in his presence, the article was seized and seizurelist was prepared. The sample was drawn from it and the same was sent to Regional Forensic Science Laboratory, Muzaffarpur for chemical analysis. 5. The report of the Regional Forensic Science Laboratory (Ext.5) indicates that on analysis the sample, which was submitted to it, was found containing ganja. On these facts, the two appellants were sent up, who were already arrested on 14.1.2006 at 3.30 A.M. 6. The appeal has to succeed merely on two points. The recovery was not from the persons of either of the two appellants. The very prosecution case was that the two appellants were found carrying bags and on search of the bags, ganja weighing 80 Kg., was found contained therein. It might be the case of the prosecution that the search and seizure was made in presence of P.W. 8 Pankaj 4 Kumar, who was on that particular day, Block Development Officer, Raxaul at 17.10. hours, i.e., after thirteen hours of the detection of ganja in the bags but, the explanation which has been furnished by the prosecution, appears completely bogus and unacceptable. If one considers sections 42 and 43 of the Act, one could find as to who are the officers of the state police who have been authorized by those particular provisions of the Act to make entry into any building, vessels, etc. or the person himself and recover and seize any narcotic material. The authorized officers by virtue of the provisions of sections 42 and 43 of the Act include an officer of the state police in the rank of Assistant Sub Inspector of police, like, the informant because the only exception is the sepoy or constable. P.W. 4 has categorically stated, both in his written report as also in his evidence, that he had already detected ganja in the two bags, but he left the fact of seizing and the fact of detecting ganja till the services of P.W. 8 were requisitioned and he had reached the platform to allow the search of the bags so as to seize the article. I have already stated that ganja was seized and it had been weighed as the total weight was 80 Kg. as is stated in Ext 2, the basis of the case, then where was the question of seeking deputation of P.W. 8 and recovering the article and seizing the same. Could not it be simply a case of manipulations by the police that it was distorting the facts so as either to destroy the prosecution case and thereby allowing the two culprits who could have been drug peddlers or smugglers to go 5 escort free by avoiding compliance of the provisions of Cr.P.C. and of the Act or of both either on account of their incompetence or for the reasons best known to them? Nothing was seized from the platform is evidently clear from the evidence of P.W. 8, who was such an important person whose services were required to be requisitioned so as to recover the article and seizing the material and thereafter preparing the seizure memo. P.W. 8 said in his evidence that nothing was searched or seized in his presence, rather, the document was prepared in the office of the G.R.P. as per the dictation of P.W. 7 and he merely put his signature. This further shows the callousness of P.W. 4 ASI Rabindra Sharma or P.W. 7, the O/C of the G.R.P.S. 7. I have already dealt with the aspect of the case as regards the detection of ganja at 3.30 A.M. but mystery still exists as to why for thirteen long hours the contraband article was left at the platform in the same two bags. The constables, who were deputed, as per P.W. 4 and P.W. 7, have not been examined. In fact, there was no need to depute any constable and as appears from the evidence, the ganja had already been seized at 3.30 A.M. by the police but, it was simply manipulating the evidence till the evening up to 17.10 P.M. by showing the necessity of deputation of gazetted rank officer for seizing the article. These are some of the facets of the case, which simply disturb the mind of the court as to how such a serious 6 offence could be investigated into so that actual culprits go unpunished. 8. The learned trial judge was convicting the appellants on these materials which materials were simply destructive of the charges. The evidence could never have proved the charges. On bare perusal of the evidence of the witnesses, even an untrained person could say that the judgment rendered by the learned trial judge was completely perverse and was passed on inferences, which could never have arisen from the evidence. 9. In the result, the appeal succeeds. The judgment of conviction and the order of sentence passed upon the two appellants are set aside. The two appellants are in custody. They shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 10th May, 2011, NAFR/Anil/