CRIMINAL APPEAL (U/S) NO. 670 OF 2007 (SJ) (Against Judgment and Order dated 22/24th May, 2007, passed by learned Additional Sessions Judge, Fast Track Courts-III, Vaishali, at Hajipur in Jandaha P. S. Case No. 35 of 2002) NARESH SINGH (Appellant) VERSUS THE STATE OF BIHAR (Respondents) ………... For the Appellant: Shri Sumant Singh, Adv. For the State of Bihar: Shri Satya Narain Prasad, Adv. PRESENT HON'BLE MR. JUSTICE SAMRENDRA PRATAP SINGH S. P. Singh, J. This appeal is directed against Judgment and Order dated 22/24th May, 2007, passed by learned Additional Sessions Judge, Fast Track Courts-III, Vaishali, at Hajipur in Jandaha P. S. Case No. 35 of 2002, whereby, the appellant has been convicted under Section 20(b)(i) of N.D.P.S. Act and sentenced to undergo RI for 10 years and also to pay a fine of Rs. 1 lac, and in default to undergo RI for one year. The informant Baneshwar Tiwary, S.I., Jandaha (not examined) had gone to village Arniyan to help S.D.P.O., Mahua in supervision of Mahua P. S. Case No. 31 of 2002. He was accompanied with constable Bindu Ram (P.W. 3), Tapeshwar Rai (not examined), Dafadar Gopal Singh (not examined) and Driver of the vehicle Shyam Bihari Pandey, P.W. 5. On seeing the police party, some persons started fleeing from the door of the appellant, Naresh Singh. He learnt the name of the accused persons, as Naresh Singh, Mithhu Singh, Umesh Choudhary and Sita Ram Mahto. The informant and his men chased them unsuccessfully. Informant in presence of two independent witnesses, namely, Ram Naresh Rai (P.W. 1) and Lakhan Singh (P.W. 2) searched the house of Naresh Singh and seized five packets of Ganja from the Cot in the house of Naresh Singh, whereas, 2 packets of Ganja were recovered from the Motorcycle, bearing Registration No. BR-24-A-6478, in front of the door of Naresh Singh. The villagers stated that Mithhu Singh indulged in illegal business of Ganja. The informant recorded his own self statement giving rise to Jandaha P. S. Case No. 35 of 2002 dated 11.05.2002 against accused persons, under Section 20(b)(i) and 22 of N.D.P.S. Act, the FIR has been marked as Ext.-2. The case was investigated by Sub Inspector, Aditya Kumar, P.W. 4, who took over the investigation and submitted chargesheet under Section 20(b)(i) and 22 of N.D.P.S. Act. Cognizance of offence was also taken under the aforesaid Section and the case was committed to the Court of Sessions. Thereafter, finally the case came to the file of present Trial Court for disposal. The Prosecution, in all, examined 5 witnesses. P.W. 1 (Ram Naresh Rai) P.W. 2 (Lakhan Singh) are seizure witnesses and have turned hostile. P.W. 3 (Bindu Ram) is one of the constables of raiding party. P.W. 4 (Aditya Kumar) is the Investigating Officer of the case, P.W. 5 (Shyam Bihari Pandey) is the Driver of the Jeep. The defence did not examine any witness. The accusations were explained to the sole appellant, facing trial under Section 313 of the Cr.P.C. On consideration of materials on record, the learned Trial Court convicted the appellant under Section 20(b)(i) of N.D.P.S. Act and sentenced as noted in paragraph 1 of the Judgment. Learned counsel for the appellant submits that prosecution did not examine materials witnesses, including Baneshwar Tiwary, the informant of the case and Tapeshwar Rai, a member of raiding party and the Sub-divisional Police Officer, Mahua. He further contends that the prosecution has not conclusively proved that the alleged house / palani and the said Motorcycle bearing Registration No. BR-24-A-6478, from which 5 and 2 packets of Ganja weighing 45 Kg. in total were recovered, belongs to him. As such the conviction is bad. In support of his submission, the learned counsel for the appellant relies upon the following cases: (i) State of H.P. Versus Bootinath (1993 Supreme Court) (ii) Anthony Sauri Pillai Versus State of Maharashtra (1993 Criminal Law Journal 1502) (iii) Md. Alam Khan Versus Narcotics Control Bureau (1996 Supreme Court 3033) He submits that the seized Ganja were not produced nor exhibited before the Magistrate nor there was any explanation for the same. In support of his contention, he relies upon the case of Jitendra & Anr. Versus State of M.P., reported in 2003, Criminal Law Journal, page 4983. He stated that non-remittance of Ganja for chemical examination itself cuts at the root of prosecution case and in support of his submissions, relied upon the case of (i) Pilli Dilli Dora Versus State of Orissa, reported in 1995 Criminal Law Journal 175 and case of Bachu Singh Vrs. State of Bihar 2001 Criminal Law Journal NOC 14: 2001 (2) BLJR, page 975. He submits that mere recovery would not be sufficient to bring home the charge. Apart from that, the two seizure witnesses, namely, Ram Naresh Rai (P.W. 1) and Lakhan Singh (P.W. 2), have not supported the factum of seizure and have been declared hostile. On the other hand, learned Counsel for the State submits that the witnesses, namely, Bindu Ram (P.W. 3) and Shyam Bihari Pandey (P.W. 5) stated that the Ganja in question were recovered from a Cot of the house of Naresh Singh as well as from Motorcycle bearing Registration No. BR-24-A-6478, standing at the door. For bringing home the charge U/S 20 & 22 of NDPS Act, it would be necessary to prove that the place from which Ganga was recovered belonged to appellant. Learned Counsel submitted that no independent witness was examined in support of proof that the house in question or the Motorcycle, belonged to the appellant. He submitted that mere occupation of the house in itself would not be sufficient to establish that the same belonged to him. It was, however, submitted that there is no material to establish that the Ganja in question was brought by this appellant or he was in exclusive possession of the same. P.W. 3 (Bindu Ram) in his deposition stated that when he and others reached the house of Naresh Singh at Village – Arniyan, he found the accused persons fleeing away. P.W. 5, Shyam Bihari Pandey in para 3 of his deposition stated that the packets were recovered from the house of Naresh Singh. P.W. 4 (Aditya Kumar), the Investigating Officer of the case, stated that he inspected the house of Naresh Singh, situated in Dakshin Tola from where 5 packets of Ganja was recovered lying on Chauki in the aforesaid premises and 2 packets of Ganja were said to be recovered from the Motorcycle bearing Registration No. BR-24-A-6478, standing outside the house. He further stated that there was none-else in the house nor could he see any other things or materials therein. He admitted that he did not examine any local witness to ascertain whether the house or Palani belonged to Naresh Singh. It is true that mere occupation of the premises can not be a conclusive proof in itself that the same belongs to the person occupying it. In the instant case, P.W. 3 (Bindu Ram) and P.W. 5 (Shyam Bihari Pandey) as well as Investigating Officer stated that they recovered the alleged Ganja from the house of Naresh Singh. In urban areas, people may not be very conversant with each other. On the other hand inhabitants of rural areas form a close knit and are more conversant with each other being localized and population being thin. There are more opportunities of interacting with each other as they have common place of meeting, entertainment or sports. The police officials of area know the inhabitants more closely than in urban areas. Here each of three police officials were sure that the Palani / house belonged to appellant and there is no circumstance to doubt their assertion. Thus, I do not find substance in submission of the learned counsel for the appellant that prosecution has not been able to establish that the house belonged to the petitioner. The ratio decided in the case of Md. Alam Khan Versus Narcotics Control Bureau, reported in 1996 Supreme Court 3033, has no bearing or application in the facts of this case. In the aforesaid case, the police raided the house of co-accused, who informed that some contrabands have also been concealed in a flat in upper floor, of one Md. Alam Khan appellant. The Police gathered further information that the appellant has a flat in one more locality. On the basis of the aforesaid information, the police raided the aforesaid premises and seized some contraband materials and attributed the same to appellant Md. Alam Khan. The appellant asserted that aforesaid flat does not belong to him and he has been falsely implicated by co-accused and prosecutrix. In the aforesaid circumstances the Apex Court ruled that there is no sufficient evidence on record to show that the flat from which drugs have been seized belonged to him. The circumstances, the place and facts of the instant case are different. Here the police, P.W. 3, P.W. 5 and the IO asserted that they are in knowhow that the house in question belonged to Naresh Singh, being police personnel of local thana having territorial jurisdiction over the same. Nontheless, the prosecution has not brought any material on record to show that the motorcycle in question belonged to the appellant. No witness deposed to the aforesaid affect. Furthermore, the prosecution did not verify in any manner from transport or motor vehicle office that the alleged motorcycle belonged to appellant. Merely because a contraband is seized from a motorcycle, which was parked outside the house, it can not be said conclusively that the same belonged to the appellant. Further more there is no evidence that the petitioner had kept Ganja in the Motorcycle. Thus the Court holds that the prosecution has failed to prove the charge that the seized Ganja on the Motorcycle bearing Registration No. BR-24-A-6478, was either kept or belonged to the appellant beyond all reasonable doubt. 1. The next submission of appellant is that non chemical examination of recovered Ganja caused prejudice to the defence as in its absence it can not be said with certainty that the seized contraband is Ganja. He relied upon the decision rendered in case of Pilli Dilli Dora Supra as well as Bachhu Singh Supra. In case of Bachhu Singh, reported in 2001, Criminal Law Journal NOC 114: 2001(2) BLJR 975, the alleged contrabands seized from the premises of accused were not sent for chemical examination. In aforesaid circumstances Jharkhand High Court held that non-examination of seized material is fatal. It was further observed that in absence of chemical examination and merely on the basis of earlier statement of one of the witnesses, it can not be held that the substance that was seized from the appellant was Ganja. 2. In case of Jitendra & Anr. Vrs. State of M.P., reported in 2003, Criminal Law Journal page 4983, noticed above, seizure witnesses too did not support the prosecution case. The seized contraband was also not produced before the trial court. The FSL report was not received in the Court and the informant was also not examined. All these circumstances led the Hon'ble Supreme Court to hold that the prosecution has not succeeded in proving the prosecution case beyond all reasonable doubt and acquitted the appellant. 3. The aforesaid ratio would fully apply in the instant case as the pointes involved are similar. Non examination of chemical seized in absence of other corroborative evidence, does weaken the prosecution case. The seized material was neither produced before the Court nor the same was exhibited, neither there is any explanation for the same. Mere oral evidence or seizure list is not sufficient in absence of corroborative evidence to prove the charge. P.W. 1 and P.W. 2, who are the seizure witnesses have not supported the factum of the seizure of the alleged Ganja from the premises of the appellant. In absence of such corroboration, the seizure list becomes a mere document of the prosecution, which remains unproved substantially. Furthermore, the Ganja was not recovered from the personal possession of the accused appellant. Ganja was neither produced in the Court nor any report of the Forensic Science Laboratory is on record, besides, this the informant was also not examined. 4. The punishment under NDPS Act are harsh and as such requires strict adherence to procedural safeguards. In view of the aforesaid cumulative circumstances, this Court does not find it safe to affirm the Judgment of conviction, passed by the Trial Court. In the result the Judgment and Order of conviction, dated 22/24th May, 2007, passed by learned Additional Sessions Judge, F.T.C.-III, Vaishali at Hajipur in Jandaha P. S. Case No. 35 of 2002, under Section 20(b)(i) of N.D.P.S. Act is set aside and the appellant, namely, Naresh Singh, is directed to be released from custody if he is not wanted in any other case. The appellant is discharged of his liabilities of bail bond With the aforesaid direction, this appeal is allowed. (Samrendra Pratap Singh, J.) Patna High Court December 8, 2008 SKM/ NAFR