CRIMINAL APPEAL (DB) NO.55 of 2007 ------------ Against the judgment of conviction dated 7.12.2006 and order of sentence dated 8.12.2006 passed by Sri Kanta Prasad, Additional Sessions Judge, Fast Track Court No.3, West Champaran, Bettiah in Trial No. 38 of 2002. -------- MANTU KUMAR SON OF JAGDISH PRASAD RESIDENT OF VILLAGE TAMKUHI ROAD, AWDAN TOLA, WARD NO.10,P.S.SEWRAHI, DISTT. KUSHINAGAR(PADRAUNA),( U.P.) -----Appellant Versus STATE OF BIHAR -----Respondent -------- For the appellant: Mr. Siya Ram Shahi For the Central Governmnt: Mr.Sandeep Kumar -------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON’BLE SHRI JUSTICE RAKESH KUMAR. --------- Rakesh Kumar,J. 1. Heard Mr.Siya Ram Shahi, learned counsel for the appellant and Mr.Sandeep Kumar, learned counsel for the Central Government. 2. The sole appellant, Mantu Kumar, has challenged the judgment and order of his conviction and sentence dated 7th December, 2006 and 8th December, 2006 respectively whereby he was held guilty and convicted for the offence under section 23© of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as NDPS Act) and sentenced to undergo rigorous imprisonment for 12 years and he was also imposed a fine of Rs. 1,50,000/- and in default of payment of fine he was further directed to undergo rigorous imprisonment for three years. 3. The prosecution story as per the prosecution report is that on secret information from coded informer regarding movement of 2 Ganja by a truck bearing registration no.URN 4545 a preventive team was formed under the leadership of one Shi U.S.Sharma, Superintendent of Custom (not examined) and rushed towards Chhawni Chowk, Bettiah at about two hours (2 A.M.) on 10.9.2002. After arrival the preventive team ambushed themselves and at about 9.30 hours one truck was seen coming as per specification provided by the informer. On signal given by the preventive party, the truck stopped and during course of checking of the truck several persons gathered there and keeping in view the said fact one person from the truck jumped and fled away. However, despite best efforts he could not be apprehended. However, the truck driver was captured and he disclosed his name as Mantu Kumar, who is appellant in the present appeal. On search of the truck after following the procedures prescribed in the NDPS Act Ganja was noticed concealed in false chamber of hood of the truck. On weighment it was found that total weight of recovered Ganja was 190 Kgs. and was assessed to rupees nine lakh. After completing formalities and in presence of independent witnesses Panchnama (Ext.3) and seizure memo (Ext.1) was prepared. In presence of two independent witnesses the truck in question bearing URN 4545 too was seized and it was valued and assessed to rupees four lakhs. On demand, the appellant could not produced any documentary evidence for its legal possession. After apprehension, voluntary statement of the appellant (Ext.8) was also got recorded. In voluntary statement the appellant stated that ganja was loaded at Pireri village under Narkatiaganj police 3 station by one Awadhesh Kishore Prasad (not sent up for trial) and Lal Babu Prasad (not sent up for trial). It is the case of the prosecution that after the truck with Ganja was recovered at Chhawni Chowk, Bettiah, the truck with Ganja along with driver, who is appellant, was carried to the office of the customs department where weighment of seized Ganja was properly done in which it was found that weight of seized Ganja was 190 Kilograms. Recovered Ganja was found kept in different bags and said bags were weighed separately and total weight of Ganja came to 190 kilograms. Subsequently, after being satisfied that the appellant had prima facie committed offence under the NDPS Act, at about 18 hours i.e. 6 P.M. on 11.9.2002 he was formally arrested by preparing arrest memo (Ext.5) and he was forward to the concerned court on 12.9.2002. In respect of seized Ganja after sampling the same was sent for its chemical examination to the Government Opium and Alkaloid Works, Ghazipur(U.P.). The address furnished by the appellant in his voluntary statement was found false during verification as per the report submitted by the Superintendent of Customs (Preventive) Circle, Gopalganj. In the prosecution report it was asserted that provision contained in section 40, 42 and 50 of the NDPS Act was fully complied with before search, seizure and arrest of the accused. 4. The appellant was taken on remand on 25.11.2002 for fresh interrogation under section 67 of the NDPS Act and after recording his reinterrogatory statement(Ext.10) he was subsequently sent to judicial custody. In his interrogatory 4 statement(Ext.9) the appellant had disclosed the names of two persons namely, Awadhesh Kishore Prasad and Lal Babu Prasad who had got loaded the Ganja on his truck, however in his reinterrogatory statement (Ext.10) he stated that earlier he had falsely given the names of Awadhesh Kishore Prasad and Lal Babu Prasad. Accordingly, after completing thorough enquiry and verification prosecution report (Ext.7) was submitted by Sri D.Kandulana, Inspector, Customs (Preventive) Circle, Bettiah (P.W.1) on 5.12.2002. 5. The prosecution during the trial examined altogether ten witnesses to prove its case and several documents were got exhibited. Ext.1 is seizure memo dated 10.9.2002, Ext.2 is forwarding report of the accused dated 11.9.2002, Ext.3 is Panchnama dated 10.9.2002, Ext.12A is signature of Sanjay Prasad (P.W.8) on Panchnama (Ext.3), Ext.4 is history sheet of the appellant, Ext.5 is arrest memo of the appellant dated 11.9.2002, Ext.6 is application dated 3.l0.2002 filed in the court for seeking remand, Ext.7 is prosecution report dated 5.12.2002 under the signature of D. Kandulana (P.W.1), Ext.8 is voluntary statement of the appellant dated 10.9.2002, Ext.9 is interrogatory statement of the appellant recorded under section 67 of the NDPS Act dated 10.9.2002, Ext.10 is re-interrogatory statement of the appellant dated 25.11.2002, Ext.1/2 is signature of Sanjay Prasad (P.W.8) on seizure memo and Ext.12/A is also signature of Sanjay Prasad (P.W.8) on Ext.3 i.e Panchanama dated 10.9.2002. 6. The defence of the appellant which have been taken at 5 the time of hearing by Sri Siya Ram Shahi, learned Advocate are as follows:- (i.)There is contradiction on the point of place of preparation of seizure list. (ii)There is conflict in between prosecution witnesses on the point of time of seizure and also time mentioned in the seizure list. (iii)The so called seized Ganja was not Ganja but were leaf which cannot be considered as Ganja under section 2(b) of the NDPS Act. (iv)Though recovery was made on 10.9.2002, the prosecution report was belatedly filed on 5.12.2002. (v)There is contradiction in the evidence on the point of period of detention of the appellant by the custom officials in view of the fact that some of the witnesses deposed that on the same day the appellant was sent to jail, however, some of the witnesses have stated that the appellant remained in custom office after his detention for about three days. (vi) Learned counsel for the appellant has seriously doubted the seizure of Ganja. (vii) He has also asserted that since Shri U.S.Sharma, Superintendent of Customs (Preventive) Circle, Bettiah, who was the leader of raid team was not produced for examination by the prosecution, the appellant has suffered serious prejudice. 6 7. With a view to demolish the defence plea taken by Sri Siya Ram Shahi, learned counsel for the appellant, Sri Sandeep Kumar, learned counsel for Central Government. counsel had taken us to the deposition of prosecution witnesses and documentary evidences which were brought on record during the trial. 8. During trial the prosecution had examined P.W.1, Dular Kandulana, Inspector of custom department; P.W.2, Madheshwar Prasad Singh, Constable in the custom department; P.W.3, Ram Babu Ram, Constable in the custom department; P.W.4, Yadunandan Prasad, Hawaldar in the custom department; P.W.5, Kali Prasad Raut, Sepoy in the custom department; P.W.6, Chandrika Shah, Hawaldar, in the custom department; P.W.7, Bhola Nath Upadhya, Hawaldar in the custom department; and P.W.10, Jagdamba Mishra, Driver in the custom department. Except P.W.10 all the aforesaid witnesses were member of the raid party. However, P.W.10 was driver of the vehicle of the department, who was also present along with the raiding party. P.W.8 Sanjay Prasad and P.W.9 Sachindra Thakur were witnesses to seizure, but P.W.9 turned hostile. 9.Shri Dular Kandulana, Inspector of custom department (P.W.1) has deposed that on 10.9.2002 he was Inspector in the Bettiah Circle of the custom department and on the day his Superintendent Sri U.S.Sharma had received secret information regarding movement of a truck loaded with Ganja near Chawni Chowk, Bettiah. The number of the truck was disclosed as URN 7 4545. On the basis of said information P.Ws.1 to 7, 9, and 10, officials of the custom department including Superintendent of Customs arrived near Chawni Chowk, Bettiah. He noticed the said truck while coming from Chawni Chowk to Bettiah. He gave signal for stopping the truck and truck stopped. He inspected the truck and thereafter it was noticed that truck was having a false chamber in its hood and during inquiry it was broken and then it was found that Ganja was concealed in the said false chamber. He further disclosed that on the truck besides driver there was one Khalasi. Both driver and Khalasi could not produce any document in respect of keeping Ganja. In the mean while a big crowd had assembled and taking advantage of the crowd Khalasi of the truck escaped from the place of occurrence. On enquiry the driver disclosed his name as Mantu Kumar (appellant). P.W.1 further stated that recovered Ganja along with truck and the present appellant were taken to Bettiah office of the department where weighment of Ganja was taken and it was found that weight of Ganja was 190 kilograms. He stated that Ganja was kept in nine bundles and thereafter the said Ganja along with the truck was seized and the driver Mantu Kumar (appellant) was arrested. 9. P.W.1 further stated that seizure memo was prepared under his writing and signature through carbon process over which Sanjay Prasad (P.W.8) and Sachindra Thakur (P.W.9) put their signature in his presence and said seizure memo was got exhibited as Ext.1. He also proved forwarding report as Ext.2. 8 He stated that Panchnama was prepared in his writing and signature and marked as Ext.4. He proved arrest memo which was typed on his dictation by one K.K.Singh and the same was marked as Ext.-5. He further stated that with a view to examine and reinterrogate the accused (appellant), an application was filed in the court of District and Sessions Judge which was under the writing and signature of the Superintendent Sri U.S.Sharma and same was marked as Ext.6. He also stated that a complaint petition was typed by office typist on his dictation and petition contains his signature. The complaint petition was marked as Ext.7. P.W.1 also proved interrogatory statement of accused Mantu Kumar (appellant) which was written by Sri Sanjay Prasad (P.W.8) and it was signed by him, Sanjay Prasad as well as accused (appellant) and the same was marked as Ext.9. He asserted that during interrogatory statement questions were put by Superintendent Sri U.S.Sharma and it was written by witness Sanjay Prasad (P.W.8) and all the pages of the said statement was signed by the accused and the Superintendent. P.W.1 stated in his deposition that during interrogation Mantu Kumar (appellant) had disclosed the name of one Ramashray Sharma. P.W.1 further stated that on remand the accused was reinterrogated by the Superintendent and the said reinterrogatory statement was got exhibited as Ext.10. 10. P.W.1 Shri Dular Kandulana stated in his deposition that seized ganja was sent to Govt. Opium and Alkaloid Works, Gajipur , Ministry of Finance , Revenue Department, Govt. of 9 India , Gajipur, U.P. and thereafter report was received from there and said report was got exhibited as Ext.11. In his cross- examination P.W.1 in paragraph 16 categoricqally stated that weighment of seized ganja was not done at the place of occurrence. In paragraph 23 of his cross-examination P.W.1 has stated that recovered ganja was kept in 9 different polythene bag and all the bags were weighed separately. 11. Similarly P.W.2, Madheshwar Pd. Singh, who is also a member of the raiding party has categorically deposed in paragraph 1 at page 16 of the paper book that after recovery the truck along with driver was carried to the office and weighment of seized ganja was done. P.W.3 Rambabu Ram, who too was a member of the raiding party at page 22 of the paper book stated that at the place of occurrence ganja was examined and truck was carried to the office. Entire documentation was done in the office. At page 23 of the paper book P.W.4 Yadunandan Prasad , who is one of the member of the raiding party has stated that they carried truck, truck driver and ganja to the office.Weighment of Ganja was done in the office. Like the other aforesaid witnesses P.W.5, P.W.6, P.W.7 and P.W.10 have consistently said that Ganja and truck along with the driver was carried to the office and thereafter weighment of Ganja was done. 12. Keeping in view the evidence, as discussed above, I am of the view that there is no contradiction or conflict in the evidence of any of the prosecution witnesses on the point of 10 seizure/ preparation of seizure memo in the office of the custom department at Bettiah and, as such, the defence taken by Sri Shahi, learned counsel for the appellant, on this very point is not sustainable and the same is rejected. 13. Regarding defence taken by learned counsel for the appellant Mr. Shahi on the point of timing of seizure it is necessary to examine the evidence of the witnesses brought on record by the prosecution as well as documentary evidence. Learned counsel for the appellant emphasizing his argument on this very point has firstly referred the evidence of P.W.3, Ram Babu Ram, at paragraph-4 wherein he has stated that the truck was detained at 9.30 A.M. and he also referred the evidence of P.W.7 at paragraph-2 wherein P.W.7 stated that at about 4.30 in the morning they arrived at Chawni Chowk and 2-3 hours after their arrival the said truck reached. I am of the view that inconsistency in respect of timing of seizure as alleged by learned counsel for the appellant cannot be stretched to the extent whereby one can come to a conclusion that such inconsistency has got significance to doubt the entire prosecution case. Deviation in the statement of aforesaid two witnesses appears to be natural, particularly, in view of the fact that detection of the truck at the place of occurrence as well as seizure of the Ganja had taken place on 10.9.2002 and P.W.7 had come to depose in the month of September, 2005. Similarly, P.W.3 was examined in the month of November, 2003 and accordingly deviation on the point of timing to such a low extent 11 can only be termed as a natural deviation which cannot render any assistance in challenging the prosecution story on the point of detection, recovery and seizure. It is consistent case of the prosecution, which has come forth from the deposition of the witnesses, that firstly the truck was detected at Chawni Chowk, Bettiah in the morning of 10.9.2002. After detection, the truck was stopped and thereafter several persons assembled there and keeping in view the crowd, one of the accused escaped from the place of occurrence, the truck was searched, false chamber was broken and thereafter it was found that Ganja was concealed in the false chamber of the hood of the truck and thereafter, the truck containing ganja along with the driver ( appellant) was carried to the office of the Custom Department at Bettiah and there in the office weighment of nine bundles containing Ganja was done and it was found that total weight of Ganja was 190 Kilograms and thereafter seizure memo was prepared vide Ext.1 at 9.30 hours. Panchnama (Ext.3) was also prepared. Both Panchnama (Ext.3) and seizure memo (Ext.1) depicts that the same was prepared at 9.30 hours. It is also evident from Ext.1 and Ext.3 that place of seizure in both the exhibits was shown near Chawni Chawk, Bettiah. It appears that since first of all the Ganja was noticed concealed in false chamber prepared in the hood of the truck, after the same was broken at Chawni Chawk, Bettiah the place has been mentioned in both of the documents as Chawni Chawk, Bettiah whereas the consistent case of the prosecution witnesses is that truck containing Ganja 12 along with driver was carried to the custom office where weighment of seized ganja was done. In any event, simply mentioning of the place as Chawni Chawk in Exts.1 and 3 as a place of preparation is not sufficient to create doubt on the prosecution case regarding weighment of seized ganja and completing documentation which include preparation of Panchnama and seizure memo etc. in the office of customs department. 14. Accordingly, the defence plea taken on behalf of the appellant regarding inconsistency of time of seizure is not sustainable and the same is turned down. 15. Sri Siya Ram Shahi, learned counsel for the appellant has further taken a defence that in any event the recovered articles may not be termed as Ganja keeping in view the fact that P.W.1 at Paragraph 18 of his cross-examination had stated that it was leaf of Ganja which was recovered from the truck. Accordingly, Mr.Shahi submitted that the leaf does not come within the meaning of definition of Ganja as contemplated under Section 2 (b) of the NDPS Act. It is appropriate at this stage to quote Section 2(b) of the Act which is as follows: “ganja, that is , the flowering tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated;” 16. It is true that in paragraph 18 during his cross- examination P.W.1 has stated that he had seized 190 Kgs of leaf 13 of Ganja. However, the statement of P.W.1 cannot be looked into in isolation, particularly on the basis of the word which was extracted by the defence at the time of cross-examination of P.W.1. If I examine the evidence of prosecution witnesses, particularly P.W.1, he has repeatedly stated that 190 Kgs. ganja was seized. Thereafter it was sent for chemical examination and the said assertion has also been corroborated by the expert’s opinion which is contained in Ext.11. During the entire argument, learned counsel never challenged regarding the sampling of seized Ganja. There are evidences on record that after the seizure of nine bags containing Ganja sampling was done and sent for its chemical examination. On perusal of Ext.7 it is evident that one sealed envelope of sample from Inspector, Custom Department (Preventive) Circle, Bettiah, West Champaran was received in the Government Opium and Alkaloid Works, Ghazipur vide letter dated 13/24.9.2002 and immediately thereafter the report was prepared on November, 2002. The report categorically states that the sample under reference was Ganja (cannabis) within the meaning of NDPS Act 1985. Accordingly, the defence argument on the point that seized article was not a Ganja within the meaning of Section 2(b) of the NDPS Act, has got no force and is fit to be rejected outrightly. 17. On behalf of the appellant it was also argued that some of the prosecution witnesses have stated that after the arrest, the appellant was sent to jail on the same date. However, some have stated that the appellant remained in the Custom Office for about 14 three days and accordingly, the learned counsel tried to create doubt in the mind of the court regarding veracity of the prosecution case. This argument is only to be noticed and rejected. The case of the prosecution is that in the morning the truck in question was detected at Chawni Chawk, Bettiah and thereafter, it was taken to the Custom Office and all formalities regarding weighment etc. were done in the Custom Office. It is true that after being apprehended with Ganja in question, the appellant was taken to the office of the Custom Department and he was detained but at the same time it is also evident that in the Office of Custom Department the appellant was also examined. His voluntary statement as well as interrogatory statement was also got recorded and only after being fully satisfied that prima facie the appellant was found to have committed the offence under the NDPS Act he was formally arrested on 11.9.2002 at 6.00 P.M. which is evident from Ext.5 and from order of the court below it is clarified that he was produced on 12.9.2002. The argument on this very point advanced by learned counsel for the petitioner further finds no merit on the facts of the present case. Subsequent to his first production before the court below, the appellant was taken on remand by the Custom Office for further enquiry and his re-interrogation. In view of the facts of the case mentioned hereinabove if one witness says that he had seen the appellant in the custom office for about three days or some have stated that on the same day, he was sent to jail, in the mind of the Court appears to have got no relevancy and, as such, 15 on this score, the appellant cannot get any benefit. 18. So far as the ground taken on behalf of the appellant that non-examination of Superintendent of Custom, Sri U.S.Sharma, has seriously prejudiced the case of the defence is concerned, I am of the view that since in the present case entire things which were collected during investigation was brought on record, merely non-examination of Superintendent cannot render any assistant to the learned counsel for the appellant to demolish the case of the prosecution. During the trial, the prosecution, of course, is not in a position to gather any assistance from the interrogatory statement of the appellant recorded under Section 67 of the NDPS Act but at the same time except Superintendent of Custom almost all the members of the raiding party have come to depose consistently in respect of prosecution case and as such, merely non-examination of Superintendent of Custom has got no relevancy in the defence as build up by learned counsel for the appellant. 19. Regarding the defence taken on behalf of the appellant raising doubt on the seizure is concerned, I am of the view that the evidences discussed hereinabove are sufficient to reject this defence. I am of the opinion that in view of the consistent evidence brought on record by the prosecution, there is nothing to create doubt on the point of seizure of Ganja. 20. Learned counsel for the appellant while questioning the search and seizure had relied upon a judgment of the Supreme Court in the case of Bahadur Singh Vs. State of Madhya Pradesh 16 and another (A.I.R.2002 SC 289). In the said case the Hon’ble court had noticed that there were serious material discrepancies in the evidence in respect of recovery and seizure. Since in the case in hand I have not seen any discrepancy either in recovery or seizure of Ganja, the appellant cannot get any benefit from the judgment of Bahadur Singh case (supra). Sri Shahi, learned counsel for the appellant has also relied upon a Division Bench judgment of this court reported in 2002 (4) 93 PLJR, Lal Babu Sah Vs. State of Bihar. In the case of Lal Babu shah there was no conclusive evidence to show that articles seized from the appellants of the case was Charas or other contraband article. So far as the present case is concerned it has been conclusive proved that seized article was Ganja. The consistent evidence is that from the truck in question Ganja was seized. Moreover, in the present case chemical examination report i.e. Ext.11 also corroborates that the seized article was Ganja within the