CRIMINAL APPEAL (SJ) No.259 OF 2007 Against the judgment of conviction and order of sentence dated 17.01.2007 and 18.01.2007 passed by learned 1st Additional Session’s Judge-cum-Special Judge, Sitamarhi, in connection with G.R. No. 445/99/Tr. No. 47/2006(27/2007). SURENDRA KUMAR @ RAM BABU RAI, Son of Net Lal Rai, resident of village – Chainpura, P.S. – Pupri, District – Sitamarhi. -------Appellant. Versus THE STATE OF BIHAR ---------Respondents. ****** For the appellant : Mr. Farukh Ahmad Khan, Mr. Mahendra Thakur, For the State : Mr. S.N. Prasad, 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 against his conviction under section 20(b)(ii)(c) of the N.D.P.S. Act and sentence to undergo rigorous imprisonment for ten years and pay a fine of Rs. 1,00,000/- in default of payment of fine further rigorous imprisonment for two years awarded by learned 1st Additional Sessions Judge, Sitamarhi in G.R. No. 445/99/Tr. No. 47/2006(27/2007). 2. The prosecution has reveal from Ext.3, the self written statement of S.I. Shyam Sundar Singh (P.W.5) recorded at 1.00 A.M. on 31.08.1999 at the door of appellant in village 2 Chainpura, P.S. – Pupri, district – Sitamarhi, is that at about 10.10 P.M. on 30.09.1999 the informant got a confidential information that there is Nepali Ganja lying in the house of the appellant in huge quantity and it is likely to be disposed of, immediately on recording sanha no. 583 (not on record) the raiding party was conducted under the leadership of the informant, wherein Ajay Kumar Singh (P.W.6) and two chowkidar namely, Shrawan Rai (P.W.1) and Satya Narayan Paswan (P.W.2) besides Ajay Kumar Singh (P.W.6) were members. The raiding party arrived at the place of occurrence at about 12.00 P.M. and found four persons fleeing, out of whom three, the appellant Surendra Kumar @ Ram babu Rai, Nagendra Bhagat and Dhorai Rai (two acquitted accused) could be apprehended and one Net Lal Rai (father of appellant and acquitted acused) successfully escaped. The raid was conducted in the house of the appellant and from the southern room behind a bed concealed under carpet eight packets in one plastic bag of Ganja weighted 150 kg were recovered and the persons apprehended failed to produce any valid document. Search was conducted in presence of 3 villagers Nawal Rai (P.W.4) and Ram Lalit Rai (P.W.3) and Seizure list was prepared, article was seized and on the basis of this statement at Police Station, Pupri P.S. Case No. 130/99 was registered under sections 22/23 of the N.D.P.S. Act. After investigation, police submitted charge sheet under section 22/23 of N.D.P.S. Act against four persons against whom on taking cognizance trial commenced after framing and explaining the charge under section 20 of the Act. 3. In support of prosecution, altogether nine witnesses have been examined besides producing the following by way of documentary evidence: Ext. 1 : Signature of Ram Lalit Rai (P.W.3) on Seizure list. Ext. 1/1 : Signature of Ram Babu Rai on the seizure list. Ext. 1/2 : Signature of Nawal Rai (P.W.4) on the seizure list. Ext. 1/3 : Signature of Shyam Sundar Singh (P.W.5) on the seizure list. Ext. 2 : Seizure list. 4 Ext. 3 : Fardbeyan. Ext. 4 : Formal F.I.R. Ext. 4/1: Signature of Rajesh Barnwal officer-in-charge on First Information Report. Ext.5 : Report of F.S.L. and on consideration whereof three persons facing trial were acquitted whereas the appellant was convicted and sentenced giving rise to present appeal. 4. It is submitted on behalf of the appellant that there is no evidence to support any recovery from the possession of the appellant nor the seized article were properly weighed, samples were prepared or sent for chemical examination even during trial. Nothing could be produced rather out of alleged 150 kg of Ganja, unsealed 10 kg was produced claiming to be seized in the instant case, that apart none of the mandatory provisions including section 50 of the N.D.P.S. Act has been complied with. 5. On the other hand, learned Additional Public Prosecutor while supporting the case submitted that prosecution has been able to establish the case and compliance of 5 section 50 of the N.D.P.S. Act, which was not at all required as the search and recovery was made from the house of the appellant. 6. Now, it is to be seen in this appeal whether the prosecution has been able to substantiate the charge against the appellant beyond any shadow of reasonable doubt or findings of the court below requires any interference. 7. As per prosecution case, on getting information about lying Ganja in huge quantity for the purpose of disposal in his house belonging to the appellant, one raiding party was organized, but from nowhere it appears that any superior officer was intimated before proceeding in the search. The officer-in-charge was not available and there was no member in the raiding party said to be a gazetted officer. 8. Shrawan Rai (P.W.1), village Chowkidar, has come to say that raid was conducted in a hut situated on government land south to the residential house of acquitted accused Net Lal Rai and in said hut the children used to get their studies. In cross examination, this witness has said that said hut was erected 6 by villagers for the purpose of education of children which was open hut without any door etc. Almost similar is the position of another chowkidar Satya Narayan Paswan (P.W.2). Both these witnesses further speak that seized article was brought to police station where papers in this regard were brought into existence. 9. Ram Lalit Rai (P.W.3), the witness to seizure list, was brought their custody to depose during trial comes to say that search was made in his presence in the house of the appellant from where 150 kgs of Ganja containing eight bags was recovered. Copy of seizure list was handed over to the appellant who endorsed his signature in receipt and this witness also signed upon the same as witness and proved Exts. 1 and 1/1. In cross examination, it has come that this witness is at inimical term which all the accused facing trial since much before the instant case and was in custody in connection with the cases lodged by the accused against him. Similar is the position of Nawal Rai (P.W.4) full brother of P.W.3. None of these two witnesses claimed going to police station with the seized articles or the accused 7 apprehended or with the police party and if as per earlier two witnesses seizure list etc. was prepared at police station, how copy of the same can be served upon the appellant at the place of recovery. There is nothing to explain. 10. Shyam Sundar Singh (P.W.5) A.S.I. member of the raiding party and the informant, at the relevant time in absence of officer-in-charge was in control of the affairs of the police station. On getting confidential information arranged raiding party constituting P.Ws. 1, 2, 6 and other constables and Havildars when arrived near the house of the appellant, four persons tried to escape in which three were apprehended. Search was conducted in the house of the appellant and from south of the house beneath a palang, eight bags of Ganja was recovered which was estimated to be 150 kgs (not weighed), seizure list was prepared which is in the pen of Ajay Kumar Singh (P.W.6). This witness has put his signature on the seizure list (Ext.1/3) copy of which was served upon appellant and this witness at about 1.00 A.M. at P.O. itself and prepared self statement (Ext.3) and entrusted investigation of the case to Ajay 8 Kumar Singh (P.W.6) at police station where the case was instituted. Formal F.I.R. is Ext.4, whereon the officer-in-charge who had arrived, meanwhile put his signature (Ext.4/1). 11. In cross examination, he admits that seized articles was brought to police station with members of the raiding party who brought the same into a Geep, which was weighted at police station and thereafter kept in Malkhana, but nowhere this witness has said a word about concealing of the seized articles or taking out any required amount from the same for the purpose of sampling and chemical examination. Similar is the position of Ajay Kumar Singh (P.W.6) another member or raiding party and investigating officer who initially tried to said in prosecution case. He further speaks about search conducted in the respective house of other co-accused Dhorai Rai and Nagendra Bhagat, but nothing could be recovered, none of other witnesses have said anything about such raid being conducted in the house of other co-accused (since acquitted). Initially charge sheet was submitted against three persons including the appellant. However, subsequently supplementary charge sheet was 9 submitted against father of the appellant (acquitted). In para 8 of the cross examination, this witness admits Pupri being a sub-divisional of town where S.D.O. and other executive officers besides Dy.S.P., all gazetted officers reside but for the reasons best known, none of these were available and authorities could be informed. In Para 11, this witness speaks about the place from where recovery was made. It is nothing but an open hut without any door adjacent south of residential house of the appellant and there was no other article kept therein whereas informant (P.W.5) has said that the seized article was kept behind a palang. This witness is further specific that he has no paper to show the land over which the said hut was belongs to the appellant or his family. On the point of enmity with other two seizure list witnesses this investigating officer is silent and in para 18 of the cross examination he further gives death nail to the prosecution case while saying that the seized Ganja was kept unsealed in the Malkhana from where nine days after i.e. 09.11.1999, sample was taken and sent for examination. There is no explanation as to why and under what 10 circumstances the seized article was not sealed nor sample etc. were taken and sealed for transmission to chemical examination. There is also no explanation for the delay caused in sending the article for chemical examination and such delay itself creates grave doubt against the prosecution version. 12. Satya Narayan Singh (P.W.7) is a formal witness, simply proved Ext.5 the report of chemical examiner. Nawal Kishor Verma (P.W.8), an A.S.I. and also member of raiding party comes to say that search and recovery was made in a hut south to the residential house of the appellant and it is consistent with the evidence of P.Ws. 1, 2 and 6. P.W.9 is constable Radha Mohan, attached with police Malkhana brought material Exhibit-1 in the court i.e. none else than 10 kgs of Ganja tagged with a rope without any seal or mark to show that the same was seized in the instant case as claimed by this witness. 13. All such materials discussed above rightly provide room to the learned counsel for the appellant to submit that none of the mandatory requirement under law has been fulfilled in the instant case and the materials are 11 same and similar under which father of the appellant Net Lal Rai has already been acquitted by the trial court. 14. Hence, I find and hold that the materials available are not sufficient to uphold the conviction of the appellant. Accordingly, the conviction and sentence of the appellant is set aside. This appeal is allowed. The appellant, who is on bail, is discharged from the liability of the bail bond furnished on his behalf. Patna High Court Date : The 14th March 2011 Rajeev/N.A.F.R. (Akhilesh Chandra, J.)