CRIMINAL APPEAL No.1287 OF 2008 **** Against the judgment and order of conviction dated 22.09.2008 passed by Sri M. Jaisul Islam, Additional Sessions Judge – cum – Special Judge, Narcotic Drugs and Psychotropic Substances Act, Kishanganj in Special Case No. 6 of 2006/Tr. No. 4 of 2006. **** 1. Awatar Singh, Son of Kashmir Singh, Resident of 17/3 Nayapatti Road, Gauripur, Dumdum, Kolkata (West Bengal). 2. Bhajan Ghosh, Son of Kalisoda Ghosh, Resident of Salmara, Police Station – Abhayapur, District – Bousi Gaingaon (Assam) -------------------------(Appellants) Versus The State Of Bihar ----------------------------- (Respondent) **** For the Appellants :- Shri Shambhu Sharan Singh, Advocate. Shri Basant Kumar Tripathy, Advocate. For the Respondent :- Mr. Kumar Priya Ranjan (CGC) Mr. Ranjeet Kumar, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD **** Gopal Prasad, J. The appellants have been convicted under Section 20 (b) (ii) (C) of the NDPS Act and have been sentenced to undergo rigorous imprisonment for 14 years and to pay fine of Rs.1,50,000/- each and in default of payment of fine, they have been directed to serve the sentence of 2 years. 2. The prosecution story as alleged in the complaint filed by the complainant Shambhu Nath Sahay alleging therein is that in course of routine checking by the Preventive Officer of Custom near Khagra 2 Railway Gumti, Kishanganj a truck was seen coming from the side of Shiliguri, signal was given to stop and the said truck bearing registration no. WB-25/2051 stopped and thereafter the preventive officer started checking the truck in presence of the Khalasi and driver and since the truck was found to be empty and polythine Tarpoline was seen tightly tied on its hood, it created suspicion and even the smell of Ganja was coming out of the truck and hence the occupant of the truck were offered the choice for the search of the truck in the presence of Magistrate or Gazetted Officer. Thereafter the truck with the driver and khalasi was brought in the premises of Custom Office the officer started checking the truck in presence of independent witness, occupants of the truck and Superintendent of Police of Custom. On search 29 packets of Ganja rapped in polythine sheets were recovered from the truck which was weighed in presence of the witnesses and the occupant of the truck, in the office of custom which was weighed as 230 Kg. The said contraband was seized, Panchanama and seizure list were prepared with the signature of the occupants i.e. driver, khalasi and the independent witnesses. The deriver and khalasi gave their voluntary statement disclosing the owner of the truck as accused no. 3, namely, Kashmir Singh and even accepted their guilt. The statements were recorded on which the occupants and independent witnesses also signed. The sample of the seized contraband Ganja was taken in presence of independent witnesses and 3 sent for chemical test. On the said complaint the cognizance was taken and thereafter the charge was framed under Section 20(b) (ii) (c) of the NDPS Act and the trial proceeded. 3. During the trial eight witnesses were examined where P. W. 1 Ashim Kumar Mandal, Inspector Central Custom, P. W. 2 Vinay Kumar Jha, Superintendent of Police of Custom, P.W. Basukinath Sahay Inspector Custom, P. W. 4 Parmindar Nath Singh Constable, P. W. 5 Tarakant Prasad Karan, P. W. 6 Birendra Kumar, P. W. 7 Samiullah and P. W. 8 Narendra Prasad Singh. The documentary evidence adduced are Ext. 1, interrogative statement of Bhajan Ghosh, Ext. 1/a interrogative statement of Avtar Singh, Ext. 2 movement register, Ext. 3 seizure list, Ext. 4 Panchanama, Ext. 5 and 5/a confessional statement of the two accused persons, Ext. 6 forward report, Ext. 7 annalist report, Ext. 8 test of memo, Ext. 9 form F, Ext. 10 complaint petition. 4. After the evidence of the prosecution was closed the statement of the appellants were recorded under Section 313 and thereafter, hearing the parties and considering the oral and documentary evidence, the order of conviction and sentence were passed as stated above. 5. Learned counsel for the appellants contended that the seizure list witnesses have not been examined. The seizure list was not prepared at the place of occurrence and hence violation of Section 55 4 of the NDPS Act. Reliance was placed upon a decision reported in 2006 (4) Eastern Criminal Cases 210 (Pappu Singh @ Manoj Kumar Vrs. State of Bihar) and further upon a decision reported in 2002 (1) PLJR 75 (Dayanand Bharati Vrs. The Union of India). 6. Learned counsel for the State however contended that the prosecution has proved the case beyond all reasonable doubts and not taking the sample and seizure on the spot does not cause any prejudice and the violation of Section 55 even if assumed, then no prejudice has been caused and hence even if there is violation of the provision, this is of no consequence and the prosecution has proved the case beyond reasonable doubts and hence the questions for consideration are whether the case has been proved beyond reasonable doubt and whether the violation, if any, has caused prejudice and created suspicion to prove the prosecution case. 7. Further prosecution case is that the truck was apprehended and it created suspicion due to the fact that the truck was vacant but the hood was sealed and tied with Tarpoline giving smell of Ganja and then the truck was taken to the office premise where on search 29 packets were recovered alleged to be Ganja and then Panchanama and seizure list was prepared and the sample taken was sent for chemical test and the report was received. P. W. 1 has stated in the evidence that during routine checking he apprehended the truck bearing registration no. WB-25/2051 and then two persons were found in the truck who 5 disclosed their names Avatar Singh and Bhajan Ghosh as driver and khalasi and so option was given whether they want to check the truck by Gazetted Officer or Magistrate and thereafter the truck was brought along with the driver and khalasi to the office and where in presence of the two independent witnesses Shankar Ram and Abadul Rah the truck was searched and the huge 29 packets of Ganja recovered which weighed as 230 Kg. Both the driver and khalasi confessed their guilt and disclosed that they were taking the truck with Ganja from Nepal to Kolkata. They also gave their voluntary statement and the interrogatory statements and in his cross examination he has further stated that sample was taken from each packet and they were mixed together and after mixing, the samples from each packet were prepared of about 25-30 gm. in three separate packets and were sealed and the specimen of the seal was taken on the test memo. 8. P.W. 2 is the Superintendent of Police of Custom who has stated about the routine checking and the apprehension of the truck. He has further stated about the truck being taken along with the driver and khalasi to the office for checking and regarding recovery of 29 packets from the truck and even sample was taken from each packet and even the packet of the sample and the signatures of the driver and Khalasi and the seizing officer were taken. He has also stated that the statement of the driver and khalasi was also taken. In cross examination, he has further stated that from each packet the sample 6 was taken out and were mixed together at one place and the sample was taken out of the said mixture in three envelops, one was kept in court, another was sent to the laboratory and one packet was kept with P. W. 2. 9. P.Ws. 3, 4 and 6 also supported the prosecution case about the apprehending of the truck and after the truck taken to the office, 29 packets and three samples were prepared. After taking out sample of Ganja from all the 29 packets and the same was sealed. They also proved the forwarding letter for sending the sample and sample and also proved the analyst report marked as Ext. 7 and also proved the sample taken from the packets. One of the samples out of the three packets has been marked as material exhibit. 10. P. W. 5 has stated that the said truck was searched and 29 packets of Ganja were recovered in packet weighing about 230 Kg. 11. P. W, 8 also stated about apprehension of the truck and recovery of 230 Kg. of Ganja from 29 packets and hence form the evidence of the witness, it is apparent that the said truck was apprehended during the normal routine check up and then a suspicion about the Ganja and so the truck was taken to the office where on search, 29 packets Ganja were recovered before the independent witness and the seizure list / Panchanama was prepared, sample taken from each packet, mixed together and sealed in three packets out of the said mixture each contained about 25-30 grm. Said mixture and 7 the said sample were sealed and sent to chemical examination and the report of Forensic Science Laboratory is received (Ext. 7). The sample was sent for chemical examination and that was found to be Ganja. 12. Hence, from the evidence of the witnesses as discussed above, it is apparent that the truck was apprehended and suspicion was raised about the presence of Ganja in the truck. So the truck was taken to Office of the Custom along with the driver and khalasi of the said truck and there the truck was searched before the independent witnesses and the Ganja was recovered which was seized and seizure list prepared and even the samples from the said seized Ganja were taken from each packet and they were mixed together and after mixing the sample was taken in three packets each containing about 25-30 gr. and the sample and the Ganja seized were sealed and the sample sealed was sent to chemical annalist for examination and the report was received that the said sample sent for chemical examination have been found to be Ganja and hence the prosecution has established the possession of Ganja with appellant to the extent of 230 Kg. beyond reasonable doubts. 13. Learned counsel for the appellants, however, submits that the truck was apprehended at the place of routine check up and the doubt having been raised about the possession of the Ganja on the ground that the said truck was neither searched nor the said Ganja was seized nor sample was taken at the spot where truck was apprehended but the 8 truck was brought to the Custom Office and there search and other formalities were observed and so since the articles were not seized and sample not taken at the spot of where the truck apprehended and hence it is contended that it is violation of Section 55 of the NDPS Act and hence appellants are liable to get the benefit for violation of Section 55 of the NDPS Act and has placed reliance upon decision reported in 2006 (4) East Criminal Case 210 (Pappu Singh @ Manoj Kumar Vrs. State of Bihar) and further decision reported in 2002 (1) PLJR 75 Dayanand Bharati Vrs. Union of India. 14. However, in the decision reported in 2006 (4) Eastern Criminal Cases 210 (Pappu Singh @ Manoj Kumar Vrs. State of Bihar) the fact is quite different. The police on secret information proceeded and caught one Pappu and from his possession two packets of smacks were recovered from his pocket on enquiry. Said Pappu disclosed to have perchased the said smack from Karru and Chhotu. Karru and Chhotu were also apprehended and from the underwear of Karru three packets of smacks were recovered and two Puria smack were recovered from Chhotu. However, P.W. 1 and 2 the seizure list witnesses of that case did not support the prosecution case about the seizure. Again the P.Ws. 3, 4, 5 and 6 of that case who were the Home Guards and when member of the raiding party also did not support though P.Ws. 7, 8 and 9 of that case supported the prosecution case and further the test report of the articles seized not submitted during 9 the trial and there was also no account of keeping the seized article and sample at safe place and sample taken and sealed after two months of recovery for test and further there is violation of Section 50 of the NDPS Act as the recovery was from the person but no opportunity was given as enshrined in Section 50 of the NDPS Act of the checking before a Magistrate and in that facts and circumstances held that prosecution has not been able to prove the charges as benefit of violation of Sections 50 and 55 of the NDPS Act was given. However, the facts and circumstances of the present case is quite different from the facts and circumstances reported in 2006 (4) Eastern Criminal Cases 210 (Pappu Singh @ Manoj Kumar Vrs. State of Bihar) and is not applicable. Hence, ratio decided is not applicable to the fact and circumstances of this case. 15. Learned counsel for the appellants has further placed reliance upon decision reported in 2002 (1) PLJR 75 (Dayanand Bharati Vrs. The Union of Inida), However, in this case placing reliance on the decision reported in 2000 (1) SCC 318 (Thandi Ram Vrs. State of Haryana) it has been held that Sections 55 and 57 has not been complied with and so conviction is bad. However, in case reported in 2000(1) SCC 318 (Thandi Ram Vrs. State of Haryana) no reasoning has been given and it has been held that Sections 50 and 55 has not been complied with and so the conviction is bad in law without going into the question about the prejudice, relying upon the decision 10 reported in 1994 (3) SCC 299 (State of Bunjab Vrs. Balbir Singh) and 1998 (8) SCC 655 and without any discussion about the facts or law in the said judgment reported in 2000 (1) SCC 318 (Thandi Ram Vrs. State of Haryana). Hence, that decision is valid for that case only and not applicable to other cases. 16. However, the ratio laid down in 1994 SCC 299 (State of Punjab Vs. Balbir Singh para 24 and 25 (6) are relevant to be quoted : “24. Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the Cr. P. C. If there is any violation of these provisions, then the Court has to examine that effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore, it has to be shown that such non- compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non- compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution. 25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: ................. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing 11 on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.” 17. This view is supported in decision reported in 2002 (4) SCC 380 Khet Singh Vrs. Union of India” “16 Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence.” 18. Hence, the position of law is well settled that if there is any violation of the procedure, the court has to see whether any prejudice has been caused to the accused and for appreciating the evidence and other relevant factor the court should bear in mind such violation and as per the point of view evaluate the evidence on record. However, under the facts and circumstances of the case, the truck was apprehended during the routine check up of the vehicle and then it was found that the truck is vacant and the seal is fitted with Tarpoline and smell of Ganja coming up and then it was taken along with the khalasi and driver to the office and hence if the truck is not checked up or search and seizure not prepared on the spot and was taken to the Custom Office when the khalasi and driver were all along on the truck and the accused remained present there and in the absence of any allegation regarding the tampering or interpolation no prejudice can be said to have caused to the accused persons and this view is supported 12 in decision reported in 2002 (4) SCC 380 (Khet Singh Vrs. Union of India). 19. In case reported in 2002 (4) SCC 380 (Khet Singh Vrs. Union of India) the point raised about the procedural illegality in conducting the search and seizure that the standing instruction of NCB 1/88 (1.5) and the standing instruction 2/88 (3.8) of NCB have not been complied in conducting the search and seizure and so the evidence collected thereby is inadmissible as in the facts and circumstances seizure was not prepared at the spot is contravention of the standing instruction where as the search was made on the truck on the road crossing but the seizure list was not prepared there but were later prepared in Custom Officer and neither the samples of the said seized article were taken on the spot nor the articles were sealed at the spot and even the seizure memo was prepared at the Office and samples were also taken there nor the instruction regarding the depositing of the seized sealed packet in Malkhana within 48 hours of the seizure were followed and there it has been held that the evidence collected and thereby such irregularity will not become inadmissible and the court is only to consider all the circumstances, find out whether any serious prejudice has been caused and going into the facts and circumstances of the case it was held that no prejudice has been caused under the facts and circumstances of that case when the khalasi and driver after the seizure were taken along with the truck to the 13 Custom Office and were all along on the truck and there was no allegation regarding the tampering or interpolation and in such circumstance held that no prejudice has been caused to the accused and hence the decision reported in 2002 (4) SCC 380 (Khet Singh Vrs. Union of India) well covers the facts and circumstances at hand and hence the principle enunciated in 2002 (4) SCC 380 (Khet Singh Vrs. Union of India) is applicable to the facts and circumstances of this case. 20. Learned counsel for the appellants further contended that the seizure list witnesses have not been examined, however, merely because the seizure witnesses have not proved the prosecution story, they cannot be rejected out right and it is well settled that the testimony of the police witness and official witness is not to be doubted or discarded merely on the ground that he happens to be official witness and hence the prosecution case cannot be rejected. It is clear that when the evidence of the official witnesses has been found to be reliable, there is nothing in their evidence to disbelieve their testimony. Moreover the accused persons have confessed their guilt and the confession has been recorded and the witnesses have proved that the search and seizure has well been proved and it is also contended that the sample were taken from each packet and were mixed together and out of the mixture three samples were taken from 14 each which were sent for chemical examination and the report of the chemical examination is Ext. 7, showing the sample as Ganja. 21. Hence, taking into consideration the entire facts and circumstances as discussed above, I find that the prosecution has been able to prove charge beyond reasonable doubt and this Court does not find any merit in the appeal and no reason to interfere with the judgment and order of the learned Lower Court and accordingly, this appeal is dismissed. (Gopal Prasad, J.) Shyam Kishore Sharma, J. (Shyam Kishore Sharma, J.) Patna High Court, Patna Dated 7th May, 2010 NAFR. / Kundan