1 Criminal Appeal (SJ) No.861 OF 2007 ******* Against the judgment and order dated 10.8.2007 and 17.8.2007 passed by Sri Chandra Shekhar Sharma, Additional Sessions Judge-cum-Special Judge under NDPS Act, Kishanganj, in Special Case no. 4/2002. ******* ABDUL HAQUE-------------------Appellant Versus THE STATE OF BIHAR-----------Respondent ******* For the Appellant : M/s Satish Chandra Mishra & Md.Nurul Hoda For the State : Mr. S.N. Lal, APP ******* P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. The sole appellant has preferred this appeal assailing his conviction under Section 22 of the Narcotic Drug and Psychotorpic Substance Act and sentenced to undergo rigorous imprisonment for ten years and also pay fine of Rs.1/- lac, in default to further undergo rigorous imprisonment for two years awarded by Additional Sessions Judge-cum-Special 2 Judge, Kishanganj, in Special Case no. 4 of 2002 on 10th August, 2007. 2. The prosecution case, in short, as revealed from self statement of S.I. Md. Sanaullah, P.W.9, recorded on 29.01.2002 at about 09 A.M. at Gachhpara Hat near the grocery shop of appellant is that on same day at about 5.30 A.M. he received one confidential information that some brown sugar is kept in the shop of appellant and the same is to be disposed of soon. On getting such information, one raiding party was arranged consisting of S.I. Surendra Kumar Singh (not examined), M.S. Kindo (not examined), S.I. K.P. Singh (P.W.10) cum Investigating Officer, S.I. Deepak Kumar (not examined) and Havildar Imanuel Ekka (not examined) and armed guard Raj Kumar Singh (P.W.6), Jai Narain Mehta (not examined), Vijay Narain Khan (P.W.5) all proceeded on government jeep bearing no.B.R.-37-2436 after endorsing Sanha entry no.778, proceeded on Jeep and arrived at the place of occurrence at about 6.00 A.M. door of the shop was found closed but appearance of persons 3 inside was being smelled, on knock, door was opened, raiding party found five persons therein who unsuccessfully tried to escape. However, from outside their identity was asked and they disclosed their respective names. They were further asked purpose of arrival of the Police and search to be made. On request of one of the persons there, Md. Zakir Hussain, one gazetted officer. Accordingly, Deputy Superintendent of Police was intimated through wireless. On whose arrival at about 07.00 A.M., after search of the raiding party search was conducted and one leather bag with brass packing was recovered with an endorsement `brown sugar` made in Thailand 1 lb. Attached with one small leather packet to be used as sample. On query, the appellant disclosed that all are in business of brown sugar and had been assembled there for that purpose. Some one was to come and receive the assignment which was seized and during further search from the posession of said Zakir Hussain, one loaded pistol was also recovered and for recovery of fire arm another case was instituted. Seized article was 4 sealed there and after searching copy of the seizure list articles were brought to Police Station with all the apprehended five persons. After investigation, charge sheet was submitted, cognizance was taken and trial commenced. 3. To suppoort the prosecution version altogether ten witnesses have been examined besides producing the following documents by way of exhibits: Exhibit-1 Signature of witness Ahmad Hussain on seizure list Exhibit-2 Seizure list Exhibit-3 Analyst report Exhibit-4 Signature of the informant Exhibit-5 Signature of Sanaullah On form F.I.R. Exhibit1/1 Signature on the seizure List Exhibit-1/2 Signature of Suresh Bada 4. Defence has also examined altogether fourteen witnesses just to show that arrest of all the five persons including appellant was not done from 5 the said shop and nothing was recovered from their possession. The last three defence witnesses D.Ws.12, 13 and 14 were examined specifically on behalf of the appellant to show he was apprehended from the chowk situated at a reasonable distance from the gorcery shop. The trial court, on consideration of the materials on record acquitted remaining accused persons but convicted and sentenced the appellant giving rise to instant appeal. 5. It is submitted by learned counsel defending the appellant that there is absolutely no evidence on record to establish recovery of brown sugar or any such article from the appellant. Even the articles said to have been recovered were neither weighed nor any sample was prepared nor they were properly transmitted for chemical examination but ignoring everything he has been convicted. On the other hand, learned Additional Public Prosecutor representing the State, supported the findings of the court below on the ground mentioned in the judgment. 6. Now, it is to be seen in this appeal 6 whether prosecution has been able to substantiate the charge against the appellant beyound reasonable shadow of doubt or findings of the court below requires interference. 7. Out of ten witnesses, P.W.1, Ahmad Hussain, proved his signature, Exhibit-1, but asserted that it was taken on blank paper, declared hostile. Similarly, P.W.2, Alauddin, examined to state that his left thumb impression was taken on blank paper. He too was declared hostile. P.W.3, Naqrul Haque, P.W.4, Kalimuddin, also declared hostile as saiod nothing in the matter. P.W.5, Vijay Narain Khan, constable, member of raiding party, never turned up for further cross examination since deffered after one line cross-examdination on the date his examdination-in-chief was recorded. As such his evidence is also not worth consideration. P.W.6, Raj Kumar Singh, another constable and member ofraiding party, in cross examination has changed the time of raid from morning to evening. Thus, his evidence is also meaningless for prosecution. P.W.8, Iqbal Alam, is a formal witness, 7 proved Exhibit-4. 8. P.W.7, Suresh Bodrea, Deputy Superintendent of Police, examined to state that on the relevant date on receiving message from the raiding party he arrived at the shop of the appellant, said about search and seizure after giving opportunity to the miscreatns in compliance of Section 50 of the Narcotic Drugs and Psycotropic Substance Act, proved Exhibit-2. He further admits in cross-examination that prior to intimation about his necessity during search, at the instance of the miscreants he had no information of availability of brown sugar and necessity of raid to be conducted. He also did not obtain consent of search in writing from the persons apprehended. 9. P.W.9, Md. Sanaullah, the informant, has said the prosecution version in examination in chief, Exhibit-2. Further proved Exhibit-1/1, ½, Exhibit-4 and Exhibit-5. During cross-examination accepts calling of the Deputy Superintendent of Police and failed to reply whether he informed any superior officer prior to his departure just on receipt 8 of confidential information. Being Officer-in-charge of the Police Station he entrusted investigation to Pd.W.10 at Place of Occurrence itself who was also member of raiding party. He is silent about taking out any amount from the seized aritcle / bag for the purpose of sample. 10. P.W.10, Kamleshwar Prasad Singh, another member of raiding party and Investigating Officer in examination in chief stated about the prosecution version. But, he is silent about taking out any material for the purpose of sample at the place of its seizure and sealing. Of course, he further speaks that by order of Chief Judicial Magistrate sample of brown sugar was sent for chemical examination in presence of one Judicial Magistrate. He further said about the primary test of sample conducted by him and establishing the material to be brown sugar. 11. From the evidene of witnesses examined and documentary evidence produced specifically Exhibit-3, Forensic Science Laboratory report, it appears that the sample sent for chemical 9 examination of course is sample of brown sugar but it is to be examined whether it was the sample taken from the article said to have been seized from the grocery shop of the appellant. 12. The wtinesses are consistent on the point that immediately on recovery of one packet said to have containing the brown sugar the same was sealed and kept in Malkhana. Investigating Officer, P.W.10, speaks about transmission of sample in presence of a Judicial Magistrate by orders of Chief Judicial Magistrate. But, on the record there is neither any order of the Chief Judicial Magistrate nor any ordersheet or report of the Chief Judicial Magistrate in whose presence it was transmitted. 13. The learned Additional Public Prosecutor drew my attention towards order dated 12.02.2002 passed in sinstant case by Special Judge indicating that on requisition received from the Investigating Officer, Chief Judicial Magistrate was directed to deputy a Magistrate for getting the sample of aforesaid seized brown sugar prepared in 10 accordance with law and procedure. But, learned Additional Public Prosecutor failed to produce any subsequent order either by the special Judge or by Chief Judicial Magistrate showing execution of the aforesaid order. Only thereafter it can be seen whether the mandatory requirement of preparation of sampling and sealing of such in accordance with law was done or not. 14. It was required under law that at the very time of search and recovery of the article it should have been weighed and simultaneously some reasonable amount must have been taken out and sealed separately for the purposes of sampling for transmition to the Forensic Science Laboratory or to be preserved for future reference but neither it was weighed nor any sample was prepared without any explanation roughly fourteen days thereafter one requisition of course appears received to the special court for preparation of such sampling that too whether was complied with or not is not evident from any of the material brought on record. This itself creats great doubt against the prosecution case 11 and there is nothing to dilute such cloud and since in that view of the matter the prosecution case itself under dark cloud, I feel no necessity to discuss other defence witnesses. Rather, I find that likewise other co-accused facing trial, this appellant could have been acquitted by the trial court itself. 15. Under the facts and circumstances, discussed above, this appeal is hereby allowed. Conviction and sentence of the appellant is set aside. Since he is in custody he is directed to be released at once if not behind the bars in connection with any other case. (Akhilesh Chandra, J.) Patna High Court, The 17th March, 2011 AAhmad/(NAFR)