CRIMINAL APPEAL No.565 OF 2007(SJ) ---------- Against the judgment and order of conviction and sentence dated 4th May, 2007 and 8th May, 2007 passed by Shri Brajendra Kumar Srivastava, Additional District & Sessions Judge – IX, Patna --------- Jaikey Ahamad alias Jaiku Ahamad, son of Rafiuddin at P.O. Maidi, Police station – Rajgir, District – Nalanda ……….Appellant Versus The State of Bihar …………Respondent -------- For the Appellant : Shri Md. Helal Ahmad, Advocate For the State : Shri S.N. Prasad, A.P.P. ------ P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA -------- Dharnidhar Jha, J. Three accused persons, including the present appellant, were put on trial by the learned Special Judge, Patna by framing charges under sections 21 and 25 of the Narcotic Drugs and Psychotropic Substances Act in Special Case no. 53 of 2001 and they were found guilty of committing the above noted offences. Out of the three, Md. Pappu had also been charged under section 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act) but he appears acquitted of that charge. 2. The order of conviction was passed on 4.5.2007 and after hearing the convict on sentence on 8.5.2007, the learned trial judge directed each of the three convicted persons to suffer rigorous imprisonment for five years under each of the two counts as also to pay a fine of rupees fifty thousand in default of which the convicted accused persons were directed to suffer further rigorous imprisonment 2 for six months. The two convicted persons have not preferred the appeal out of the three and the appeal has been preferred by the present appellant alone to challenge the conviction and sentence inflicted upon him. 3. Put briefly, the facts of the case are that the informant Md. Mokim, who was the Officer Incharge of Kotwali Police station, Patna, received a secret information on 29.8.2001 that three persons were concealing smack just by the side of the southern wall of Mahavir Temple. Accordingly, he formed a raiding party and reached at the place of occurrence and found three – four persons there, who seeing the police party attempted to run away. Three persons were apprehended which included the present appellant and on questioning, it is alleged, this appellant stated that he was the head of the gang and, in fact, the owner of the smack which was being dispensed with by the remaining two apprehended persons. It was further stated that the appellant also indicated to the informant that if his jhopri, situated in Bakri market was searched, then some more quantity of smacks could be recovered from there. As regards recovery from the place of occurrence, which was by the side of the wall of Mahavir temple, it was only two purias from the two appellants along with a cash of rupees sixty. The jhopri of the appellant situated in the Bakri market was searched and 14 purias of smack along with some currency notes were recovered as per the seizure memo which has been marked Ext. 1 in the case. Accordingly, the written statement was filed by the informant and on that basis, FIR of the case (Ext 3) was drawn up and investigation 3 was proceeded with, which ultimately ended in submission of charge sheet against the three accused, who were put on trial. 4. Four witnesses were examined, out of whom, P.Ws. 3 and 4 were witnesses to seizure and they were declared hostile as they refuted the suggestion that the search and seizure had been made in their presence. But, both the prosecution witnesses accepted the fact that Ext. 1, the seizure memo, was bearing their respective signatures. The prosecution story, which has been set out by me presently, was supported by P.Ws. 1 and 2; P.W. 1 being informant. There is no deviation from any word which is contained in the written report (Ext. 2) as regards the evidence of P.Ws. 1 and 2 both. 5. The contention before me is that as regards search of the person of the appellant or other convicted persons at the first place of occurrence, which was south of the wall of Mahavir temple, it is admitted position, both due to the FIR as also on account of the evidence, that the informant had the prior information that some persons were dealing in smack and as per the evidence, recovery of two purias of smack from the present appellant and more purias from other convicted persons were also made but, the search and recovery was made in violation of the mandatory provision of section 50 of the Act. As regards the search and recovery from the jhopri, allegedly belonging to the appellant in Bakri market, it was contended that there is absolutely no evidence as to when and by whom the sampling was made and before that, whether the recovered article, in the form of purias, was put into the possession of the Officer incharge of the police 4 station after making a due entry in the malkhana register. Thus, it was contended that the mandatory provision on storage and packaging as set down by the provisions of the Act, appears completely violated. 6. Learned APP has conceded on the first argument that the mandates of section 50 of the Act were required to be complied with. But, submitted that the confession of the present appellant was leading to the discovery of purias containing smack from the jhopri of the present appellant and, as such, in respect of that particular recovery or search, there was no need of compliance of section 50 of the Act. However, learned APP has fairly contended that as regards the search of seized articles and its sampling, there is some defect in the prosecution case on compliance of mandatory provision contained in section 55 of the Act. 7. As regards the first search and recovery of different purias of smack from the possession of three different accused persons including present appellant, it could be said that the evidence on that part of the prosecution case is completely inadmissible. The non compliance of section 50 of the Act has been held making the evidence on search and seizure inadmissible and, as such, the conviction on the basis of such evidence could not be sustained. This court’s one decision among others, in the case of Aklu Mian Vs. State of Bihar reported in 2011 (1) BLJ 250 could be referred to for seeking support in recording the above view. Likewise, in view of the provisions of sections 41, 42 and 43 besides that of section 55 of the Act, it is required by law that just after the recovery of any narcotic drugs or psychotropic substance, 5 the possession thereof has to be transferred by the officer making the recovery to the Officer Incharge of the police station within whose jurisdiction the offence has been detected. Thereafter, the Officer Incharge has to make an entry about the receipt of the substance into the malkhana register and the whole recovered article has to be put under the seals of both the Officer-In-charge and the officer who had recovered it. There is absolutely no evidence on record of the present case that the above mandatory provisions of the Act on search and sealing of the recovered article has been complied with. What appears as the next defect in the prosecution case is that as regards the sending of the sampled substance for chemical analysis to the Forensic Science Laboratory, the sampling has to be done in presence of the officer who had recovered it and the officer-in-charge who had received the possession of the article. The law requires that the two officers shall have to put their own personal seals over the packet so as to secure its genuineness. The purpose for doing so was to identify the contraband which was really recovered and seized. In the aforesaid decision rendered in the case of Aklu Mian (supra), it was pointed out that it was very sacrosanct as may appear from paragraph 14 of the report which deals with the above part on compliance of the statutory provisions. It was pointed out in that connection that the purpose of putting down these stringent provisions in the Act was simply to obviate any tampering or manipulation in the seized article so that the accused could not get unduly harassed by being inflicted some harsher sentence. The evidence on the above part of compliance of law, as I have just 6 now pointed out, is completely absent. Thus, even if accepted that the statement of the appellant had led to the recovery of 14 purias of smack, the recovery could not be accepted in absence of the other parts of non compliance of law leading into the case suffering from incurable legal defect. 8. Besides the above, what I find is that the recovery was allegedly made on 29.1.2001, there is no evidence on record as to what was the total weight of recovered smack, there is absolutely no evidence on sealing and sampling as I have just pointed out, but the photo copy of the Forensic Science Laboratory report – God knows why the original had not been brought on record – indicates that the sampled article was received by the Forensic Science Laboratory, Patna on 10.12.2001, i.e., after more than three months of the recovery of the contraband article. In Valsala Vs. State of Kerala reported in 1994 Cr.LJ – 1, the Supreme Court was considering the impact of delayed dispatch of the seized narcotic drugs and receipt of the sampled article by the Forensic Science Laboratory and was holding that it could not be said with certainty that on account of delayed sampling and packaging as also receipt of the seized article, the same article which had been recovered, had been sent for chemical analysis. Their lordships were doubting by pointing out that the chance of seized articles being replaced may not be ruled out. I have already pointed out in the present case that there is an absolute absence of evidence as to where the article was kept, how it was packed and sealed and when it was sent to the Forensic Science Laboratory. These are the major defects from which 7 the whole prosecution case suffers, as a result of which; the judgment of conviction could not be sustained. The judgment is hereby set aside. The appellant is acquitted by allowing the appeal. He is directed to be released from custody if not wanted in any other case. 9. It is true that the two other convicts did not prefer any appeal. But, on account of the defects the whole judgment of conviction was vitiated and was not sustainable in the eyes of law for the reasons just recorded, they too be released from custody if they are not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, 4th March, 2011, NAFR/Anil/