Criminal Appeal No. 564 of 2008 (D.B.) **** Against the judgment of conviction and order of sentence, dated 26.04.2008 and 03.05.2008, passed by Additional Sessions Judge-I- cum-Special Judge, N.D.P.S. Act, Purnea, in Special Case No. 22 of 1993/9 of 1999 **** Abdul Wahid, son of late Abdul Aziz, resident of House No. 1045, Sadar Bazar, Pan Mandi, P.S. Sadar Thana, district Delhi 6 .. Appellant Versus 1. The State of Bihar 2. Shri Bikash Srivastava, Inspector, Custom Circle, Kishanganj through Union of India .. Respondents **** For the petitioner .. Mr. Rajesh Kumar, Adv. Amicus Curiae For the Union of India .. Mr. Binay Kumar Pandey, Central Government, S.C. **** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Shyam Kishore Sharma & Gopal Prasad, JJ. The appeal on behalf of sole appellant, Abdul Wahid, is against the judgment of conviction, dated 26.04.2008, and order of sentence, dated 03.05.2008, passed by learned Additional Sessions Judge-I-cum-Special Judge, N.D.P.S.Act, Purnea, in Special Case No. 22 of 1993/9 of 1999 whereby and where under the learned Special Court convicted the appellant under Section 23 read with Section 8(c) of the Narcotic Drugs and Psychotropic 2 Substances Act, 1985, and sentenced him to undergo rigorous imprisonment for fifteen years and also imposed a fine of Rs,150,000/- under Section 23(c) read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and in default the appellant was further sentenced to undergo simple imprisonment for two years. 2. One Bikash Srivastava, Inspector, Custom Circle, Kishanganj, gave a written complaint on 30th July, 1993, with regard to an occurrence of the same date which became the basis of the present appeal. The Complaint Case No. 135 of 1993 alleged that at 03.15 hours the complaint along with his other team members were on preventive checking duty on National Highway No. 31 near Faringgola. At that very time the preventive team gave signal to a TATA truck to stop and the truck bearing registration no. DIG 2848 stopped. The truck driver, namely, the accused, disclosed that he was carrying old gunny bags bundles. On verification and examination of the goods it was found that ganja was concealed in the bundles of old empty gunny bags. The accused/appellant disclosed that he was given the charge of the truck at Beltallah, Guwahati. Initially, one Birbal Yadav was also driving the truck, but, he fled away near the border of Bihar-West Bengal at the sight of the official of the Custom Department. The Custom Officer tried to locate Birbal Yadav, but, they failed. Two independent witnesses, Chandhal Roy and Anoop Roy, were called and the truck was brought to the Custom Office, Kishanganj. The truck was searched there and from beneath the bundles of the empty gunny 3 bags huge quantity of ganja, kept in 120 packets weighing 1237 Kg in gross weight 1210 Kg was found. The gunny bags were carried by Hindu-Muslim Transport Company, National Highway, Lalmati, Guwahati, through consignment no. 701, dated 21.07.1993, and chalan was in the name of M/S Joti Enterprises, Chartribari Road, Guwahati, bearing chalan no. 69 of 1993-1994, dated 21.07.1993, the seizure list was prepared, which was signed by the accused the witnesses. The ganja was sent for chemical examination, cognizance was taken and the trial proceeded. Against the appellant the charge was framed which is herein quoted below : “That you on or about the 13th July, 1993, at Faringgola, on National Highway No. 31, Kishanganj, were carrying 120 packets of ganja weighing 1210 Kg in TATA truck bearing registration no. Deputy Inspector General of Police 2848.” 3. In course of the trial the prosecution examined nine witnesses. They were P.W. 1, Bibhash Srivastava, the complainant, P.W. 2, Chhedi Prasad, P.W. 3, Surendra Singh, P.W. 4, Subodh Kumar Jha, P.W. 5, S.P. Singh, P.W. 6, Bharat Ram, P.W. 7, Kameshwar Prasad, P.W. 8, Sunil Kumar Singh, and P.W. 9, Ramesh Sah. All the witnesses examined on behalf of the prosecution are officials of the Custom Department and no independent witness has been examined on behalf of the prosecution. 4. No doubt, the officials of the Custom Department have stated that on the date of occurrence truck was being driven by the 4 appellant. On search of the truck, it was detected that it was carrying ganja, which was beyond the commercial quantity. The sample of ganja was taken and it was sent for chemical examination. As per the report of the chemical examination, it was found that the sample sent was of ganja. 5. From the evidence of the prosecution, it appears that the official has taken three samples from one packet. No evidence on behalf of the prosecution is that seized articles were mixed and sample of the mixture was taken rather the allegation is specific that sample was taken from only one packet. Punishment varies from the quantum and on the provisions of the Act. If the prosecution alleges that the alleged truck narcotic drugs being carried were of commercial quantity then the onus to prove that the narcotic drugs substance, which is ganja in the present case, was of commercial quantity, i.e., more than twenty kilogram. The evidence of P.W. 1 is that the seizure was of 1210 Kg of ganja, but, the sample from only one packet was taken. Similar is the evidence of other witness. The prosecution has not been able to prove that the sample was not taken from only one packet meaning thereby that the samples of 119 packets, which were alleged to have been seized, were not taken. Therefore, it can not be held that other 119 packets, which were carrying ganja, were, in fact, ganja or not. 6. Another defence has been taken by the appellant that on the date on which he was put on trial and convicted, there was no seizure at all on 13th July, 1993, because it is not the case of the prosecution that on that date any seizure was made. It has also 5 been pointed out that after closure of the prosecution evidence the substance of the evidence under Section 313 of the Criminal Procedure Code was explained to the appellant and that was also that on 13th July, 1993, the appellant was in possession of the ganja. 7. The last important aspect of this appeal is that the sole appellant has been charged for committing an offence on 13th July, 1993. There is no evidence at all of any of the witnesses that any seizure was made on the date, i.e., 13th July, 1993, for which the appellant was put to charge. The consistent evidence is that the seizure was on 13th July, 1993. After completion of the prosecution witnesses the statement of the sole appellant was recorded under Section 313 of the Criminal Procedure Code wherein also it was explained that the evidence has come to the extent that on 13th July, 1993, he was found in possession of 1210 Kg of ganja. The Court has not considered this vital aspect of the case and has convicted the appellant. There is no evidence that the appellant, on 13th July, 1993, was found in possession of ganja. This, according to Section 313 of the Criminal Procedure Code, is inconformity of the evidence of the prosecution witnesses. The charge and statement under Section 313 of the Criminal Procedure Code are to the effect that the seizure was on 13th July, 1993, but, the evidence is that on 30th July, 1993, the appellant was found in possession of the ganja. The appellant has been deliberately prejudiced due to this inconsistency of the charge and statement under Section 313 of the Criminal Procedure Code. 6 8. No doubt, learned counsel for the Union of India has submitted that it may be a clerical error. In the background of this case it appears that it was not only clerical error because not only at one place the date of occurrence is mentioned as 13th July, 1993, rather at another place also the same date is mentioned. These two dates were relevant for the appellant and the Court has put direct question to the accused on two occasions, i.e., at the stage of charge and at the time of recording the statement under Section 313 of the Criminal Procedure Code. On these two occasions there was no one between the Court and the accused. The accused has rightly denied his implication because there was nothing on record from which no inference could have been drawn that the accused was found in possession of ganja on the date on which he was charged or on the date the appellant has come. Therefore, the appellant was put on trial for an offence of the date which he never committed. 9. Considering the fact that there was seizure of only one packet out of 120 packets, the charge of offence of substance of requisition was different from the oral evidence which has come. We are of the view that the prosecution has not been able to prove the charges beyond reasonable doubts against the appellant 10. In the result, we are of the view that the prosecution has failed to prove the charge beyond reasonable doubt and so the judgment and sentence are set aside. Since, the appellant is in jail, therefore, he is directed to be released on bail forthwith, if not required in any other case. He is discharge from the liability of the bail bond. 7 11. The appeal is allowed. 12. Let a copy of the first and last page of this judgment be handed over to the learned amicus curiae, who will be entitled for honorarium/remuneration from the Patna High Court Legal Service Committee. (Shyam Kishore Sharma, J.) ( Gopal Prasad, J. ) The Patna High Court, The 28th day of April, 2010, N.A.F.R./S.A.