CRIMINAL APPEAL (DB) No. 1299 OF 2008 **** Against the judgment dated 16.09.2008 and order dated 19.09.2008 passed by Sri Kamaldeo Singh, Additional Sessions Judge, F.T.C. II, East Champaran, Motihari in N.D.P.S. Case No. 22 of 2005. **** 1. Jyotish Kumar Singh, Son of Jageshwar Singh. 2. Munchun Sah, Son of Sri Ram Balak Sah. 3. Navin Kumar Sah, Son of Mahendra Sah. 4. Meera Devi, Wife of Subodh Mandal. All are residents of village – Jhatla, P.S. – Mansi, District – Khagaria. -------------------------(Appellants) Versus The State Of Bihar--------------------------------(Respondent) **** For the Appellants :- Mr. Ravindra Kumar, Advocate. For the Respondent :- Mr. Ashwani Kumar Sinha, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Appellants have been convicted under Sections 20 (b) (ii) (c) of the NDPS Act and have been sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs.1,25,000/- (one lac and twenty five thousand) and in case of non payment of the fine, the appellants have been directed further to suffer rigorous imprisonment for a period of six months. 2. The prosecution case on the basis of written report of the informant Rajesh Barnwal, Officer In Charge of Banjaria Police Station drawn in front of Karpuri Thakur College near Singhia railway crossing alleging therein is that on 30.03.2005, he received information from the office of the 2 Superintendent of Police, Motihari on telephone that a black Marshal car has been seen passing through Chakia Police Station with criminals and so its verification is necessary to control the crime and hence direction was issued to check VIP cars. The said information was recorded in the diary bearing Sanha No. 597 dated 30.03.2005 at 10:00 P.M. and the informant Rajesh Barnwal along with P.W. 1 Mr. P. N. Singh, ASI (not examined), Havildar Surendra Singh (P.W. 2), constable Rajesh Kumar Singh P.W. 4, Constable Jay Prakash Singh P.W. 5, Constable Vinod Kumar P.W. 6, reached at Singhia Gumati and started checking of the vehicles. At about 10:45 P.M. driver of a white Sumo bearing no. BR 34/5741 was seen coming at a very high speed from the side of West Champaran but seeing the checking the driver of the vehicle tried to turn back his vehicle to flee away, on which the police party apprehended it. In the said Sumo car, except driver, two male and one female were found sitting who disclosed their names as Jyotish Kumar Singh (Driver), one Manchan Sah, Navin Kumar Sah and Mira Devi and they disclosed that they used to smuggle Ganja from Nepal jointly. 3. Further the case is that the search of the vehicle was made in presence of two independent witnesses Ashok Sah and Surendra Raut and five packets of Ganja, in all weighing about 40 Kg., was seized along with the vehicle. Formal First Information Report was drawn and after the investigation charge-sheet was submitted under Section 414 of the Indian Penal Code and Section 20 (b) (ii) (c) of the NDPS Act and thereafter cognizance was taken 3 and consequently charge was framed under Section 414 of the Indian Penal Code and 20 (b) (ii) (c) of the NDPS Act. However, during the trial nine witnesses were examined on behalf of the prosecution who are P.W. 1 Ashok Sah, P. W. 2 Surendra Raut, P.W. 3 Rajesh Barnwal, P.W. 4 Raj Kapoor Singh, P.W. 5 Jay Prakash Singh, P.W. 6 Binod Kumar Rai, P.W. 7 Perma- nand Singh, P.W. 8 Kedar Nath Yadav and P.W. 9 Nirmal Kumar Singh. 4. The documentary evidence was adduced. Ext. 1 signature of seizure list, Ext. 2 seizure list, Ext. 3 confessional statement, Ext. 4 Formal First Information Report, Ext. 5 signature of Special Judge on forwarding letter for examination of seized article, Ext. 6 is a chemical examination report, Ext. 7 material exhibit 1, 1/1, 1/2, 1/3, and ¼ are the seized Ganja in five packets. On the oral and documentary evidence adduced on behalf of the prosecution and hearing the submission of the parties, the appellants were convicted and sentenced as stated above. 5. Learned counsel for the appellants, however, contended that the ASI was not authorized to investigate and hence there is violation of Section 41 of the NDPS Act. The owner of the vehicle was neither produced as witness nor arraigned as an accused nor the vehicle was confiscated nor even the confiscation proceeding was initiated and hence the investigation not completed about the conscious possession of the Ganja to the appellants. It has further been stated that the seizure was on 30.03.2005, First Information Report was drawn on 31.03.2005 but the seizure list mentioned the Police 4 Station Case No. and so the seizure list must have been prepared after the drawing of FIR on 31.05.2005 and not on 30.03.2005. It has further been contended that the I.O admits that he was not member of the raiding party whereas the First Information Report mentioned him as a member of raiding party. It has further been contended that there is non-compliance of Section 50 of the NDPS Act as well as violation of Section 100 of the Cr.P.C as the body of the female was searched without female constable. It has further been contended that there is violation of Section 42 proviso (ii) as no information was given within 72 hours to the Senior Officers and there is violation of Section 55 of the NDPS Act as the seized article was not sealed at about the time of seizure. 6. Learned counsel for the State, however, contended that the S.I. was quite competent. The names of accused persons and the First Information Report number are mentioned so that the seizure list of the case may not be confused with other case and Section 50 of the NDPS Act is not required in the facts and circumstance as seizure has been made from the vehicle and the seized articles have been recovered not from the person but from the vehicle and other violations, ipso facto, does not vitiate the trial as no prejudice has been shown to have been caused. Mere statutory violation has no consequence in the facts and circumstances of the case as no prejudice has been shown to have been caused to the accused persons for statutory violation of the NDPS Act. 5 7. Hence, the question for consideration is whether the prosecution has proved charged beyond reasonable doubts or any prejudice has been caused for non compliance of any statutory provision of the NDPS Act. 8. Now I proceed to consider the evidence in the light of submission made by the parties. The prosecution has alleged in the fardbeyan that on direction of the Superintendent of Police that some criminals have been seen in black Marshal Car, and so VIP cars be checked to control the crime and then the informant P.W. 3 proceeded for checking along with the party and a Sumo car was seen coming with high speed. On seeing the checking they tried to turn back and then the police apprehended and on the said vehicle in addition to driver, two male and one female were found and they disclosed that they are involved in smuggling of Ganja and then before the two independent witnesses, on search, five packets Ganja were recovered and for which the seizure list was prepared, written report was drawn and on the basis of the written report First Information was lodged and investigation was directed to be conducted by ASI P. N. Singh. 9. P.W. 1 is Ashok Kumar, a seizure list witness. He has proved his signature on the seizure list, however, he has stated that the papers on which he signed was whether written or not, he could not know and did not disclose about the seizure of Ganja. 10. P.W. 2 has also proved his thumb impression on seizure list, however, has stated that he did not know whether the paper he signed, was written or 6 not. Having regard to the facts and circumstance that P.W. 1 and 2 are seizure list witnesses and proved their signature and though they have denied about the contents or seizure of the Ganja before them, however, having regard to the facts that they have admitted their signature or thumb impression the seizure has been proved. 11. P.W. 3 is the Officer-In-Charge and he is the informant and as stated that on the date of occurrence i.e. dated 30.03.2005 at 10:45 P.M the white Sumo car came at very high speed and the driver, seeing the checking of the vehicle, tried to turn around his car which was apprehended by the police party. The driver of the said Sumo disclosed his name as Jyotish Kumar Singh and other disclosed his name as Manchan Sah and Navin Kumar Sah and the lady disclosed his name as Mira Devi and thereafter in presence of two independent local witnesses the car was searched and from the said car five packets of Ganja Ganja was recovered weighing about 40 Kg. The said Ganja was seized, seizure list prepared and has proved the seizure list which has been marked as Ext. 2 and has stated that the investigation was handed over to P. N. Singh, ASI, after the lodging of the First Information Report under Section 414 of the Indian Penal Code and Section 22 and 23 of the NDPS Act. He has proved the First Information Report as Ext. 3 and has identified four accused persons in dock as Mira Devi, Joytish Kumar Singh, Manchan Sah and Navin Kumar Sah. He has further stated in his cross examination that the information about the occurrence was given to the Senior Officers but 7 could not get instruction from them. He has further stated that the accused persons have disclosed about the Ganja and the seizure list was prepared on the spot. He has further stated that on the packet of the Ganja the signatures of the witnesses were taken on the seizure list. He has further stated that no mark or sign or seal was given on the seized packet of Ganja. He has further stated that out of the seized Ganja no sample was made for sending to the Forensic Science Laboratory for examination by him and that he did not open any packet, however, stated that he searched the person of the accused but nothing was found from that persons and he did not disclose about the provision of Section 50 of the NDPS Act to the accused persons. Hence, it is apparent from the evidence that he is the informant who apprehended the vehicle and made a search of the vehicle and from the vehicle three male and one female were taken in custody and on search of the vehicle five packets was Ganja were seized. However, neither the said Ganja was sealed nor signed nor any mark was given on the said Ganja, where the signature of the witnesses were taken on the back nor he signed any sample out of the said Ganja to the Forensic Science Laboratory nor there is any mention what did he do with the said Ganja. P. Ws. 4, 5 and 6 have supported the prosecution case about apprehending the vehicle by the raiding party and recovery of five packets of Ganja weighing about 40 Kg. and two male and one female in addition to the driver were found in the vehicle. 8 12. P. W. 4 has stated that the information about the occurrence was given to the Senior Officer and the Ganja seized was not weighed before him. 13. However, none of these witnesses P. Ws. 4, 5 and 6 stated about the sealing of Ganja or taking sample of the seized Ganja on the spot. 14. P. W. 7 as Permanand Singh, Constable and as stated that the investigation of the Banjaria P. S. Case No. 73 of 2005 was handed over to him and has recorded the further statement of the informant and the statement of the seizure list witnesses and filed the petition before the District Judge – cum – Special Judge, NDPS for physical verification of the said Ganja and for sending the sample of the said Ganja to the Forensic Science Laboratory and the District Judge ordered for physical verification and thereafter the Judicial Magistrate made the physical verification and 50 gram Ganja was taken out as sample and was sealed and said sealed sample was placed before the Special Court which was sent for chemical examination and the forwarding of the sample for chemical examination has been proved as Ext. 5. However, he has stated that at the time of handing over the charge of the investigation he got 40 Kg. in five packets and thereafter the said Ganja was kept in Malkhana. He has further stated that he has opened five packets and thereafter on seeing the five packets he closed it but he did not put any mark after closing it. In para 7 of his cross examination in his deposition he has further stated that he has deposited the Ganja in the Malkhana without having sealed it. He has further stated that it was mentioned in register that he has deposited the Ganja in 9 Malkhana. He has further stated that the physical verification of the seized Ganja was done in the Court and the said physical verification was done on 11.05.2005 and the sample of the Ganja was taken out at the time of physical verification and the said Ganja was weighed and after taking the Ganja for sampling, the packet was sealed. 15. However, he has stated in his evidence that the seized Ganja when produced in court then all the packets was sealed and during investigation he has mentioned in the diary that the seized Ganja was safely kept. However, he has stated that he has not written that the said Ganja was sealed and hence from the evidence of this witness though he has stated that he received the seized Ganja at the time of investigation, however, the investigation was handed over to him on 31.03.2005 where as the Ganja was seized on 30.03.2005. 16. P. W. 3 is the informant who has stated that he was leading the raiding party which apprehended the vehicle and seized the Ganja and seizure list prepared and in his evidence in para 12 stated that no mark signed or seal was made on the seized Ganja and in para 13 has stated that seized Ganja was not sent by him to the Forensic Science Laboratory, hence sample was also not taken by P. Ws. 3, 4, 5 and 6 and they have stated nothing about the sealing or sampling of the seized Ganja. 17. P. W. 7 the informant in his categorical evidence has stated that he filed petition before the District Judge for certification and physical verification 10 and for taking out the sample of the seized Ganja he has categorically stated that when he took the charge of investigation he got five packets of seized Ganja and he opened it, saw it and closed it but he did not sign it. He has further stated in para 7 categorically that the said Ganja was deposited in Malkhana without being sealed and filed petition for physical verification on 11.05.2005 and for the physical verification by the Magistrate the sample was taken out and sealed which was sent for physical verification and hence the facts remain established that the Ganja was seized on 30.03.2005 and it was not sealed either on 30.03.2005 nor was sealed nor any mark was given and even when it was handed over by the informant to the I.O. The I.O also opened it and looked into but did not seal it and he sent the seized Ganja in the Malkhana without having sealed or without having marked and has stated that it was stated in the Malkhana register and thereafter he filed petition on 11.05.2005 before the Court for certification and taking out sample and then the sample was taken and the articles seized were weighed in Court of the Magistrate and thereafter it was sealed. However, the question at this juncture is that after seizure of the Ganja on 30.03.2005, it was not sealed. It was kept in Malkhana after opening it and thereafter without sealing it and then on 11.05.2005, it was produced before the Court for verification on 11.05.2005 and hence the said seized article was kept open from 30.03.2005 to 11.05.2005 in Malkhana without any sign, seal or mark. 11 18. Hence, the question for consideration is whether it is violation of Section 55 of the NDPS Act and whether this act caused prejudices to the accused. 19. P. W. 8 is the S.I. and he has stated that he is In – Charge of Malkhana since 14.11.2006 and he brought the seized article in pursuance of letter of S.P. of NDPS which was seized in connection with Banjaria P. S. Case No. 73 of 2005. However, he has stated that out of the five packets two packets were formed and some Ganja had fallen down. However, three packets were intact which had been marked as Ext. (1), (1/1) and 1/2 and rest two packets were in torn state, marked as Ext. I/3 and I/4, however, he has stated that he has not weighed the Ganja and there is no mention of P. S. Case Number on any of the packets. 20. However, on the packet in which all the packets have been kept, there is no mention of Banjaria P. S. Case No. 72 of 2005 and on two packets P. S. Case No. has not been mentioned. 21. However, it has further been stated that none of the packets has been sealed, neither any signature nor there is mentioned of any name and on two of the packets there is mention 7 of 2005, which is Malkahna register number. 22. P. W. 9 has stated that he has taken the supplementary investigation of Banjaria P. S. Case No. 73 of 2005 as earlier the charge-sheet submitted by the I.O in the case in contemplation of report of Forensic Science Laboratory and during the supplementary investigation he got the report of Forensic 12 Science Laboratory of the alleged Ganja and then he submitted charge sheet in the supplementary investigation. Defence has adduced one witness D.W. 1, however, he has come to say that on 11.05.2005 he was posted as Bench Clerk in the Court of Bharat Singh, Judicial Magistrate, First Class and on that day he had not taken any sample of Ganja nor he had taken any Taraju. 23. However, the said D.W. has been examined as a court witness and he has stated that on 11.05.2005 by the order of the District Judge, Motihari, the Ganja was produced in five packets weighing 40 Kg. for physical verification and he had taken out 50 gram sample and sealed it in a packet and put his initial on the said sample and has proved his initial. 24. However, he stated that he does not remember whether he signed all the five packets separately and the 50 gr. was not weighed though he has signed on the forwarding. He does not remember whether the accused were produced at the time of certification. 25. Hence, having regard to the facts, the point raised now in the facts and circumstance is that the I.O. has no jurisdiction as S.I. is not authorized to investigate, however, it is well settled that all the SI of police station has been authorized to investigate the offence under NDPS Act and the same has been reported in decision 2002 (4) PLJR 787 (Ashok Kumar Munna Singh Vs. State of Bihar). 26. Learned counsel for the appellants further contended that the next point raised is that the owner of vehicle was not produced and hence the conscious 13 possession cannot be held to be established. However, having regard to the fact that when the driver of the vehicle saw that the checking of the vehicle was going on and as he was coming at very high speed, stopped the car and tried to turn the vehicle back to flee away and then apprehended and the accused persons confessed and admitted about the smuggling of the Ganja and hence this circumstance is sufficient to suggest about the conscious possession of illicit or illegal Ganja and hence there is no merit in the submission, moreover, when Ganja was recovered from the vehicle in which they were sitting and then it is further to prove that it was not in their knowledge. 27. Learned counsel for the appellants, however, contended that the seizure is on 30.03.2005 whereas the First Information Report was drawn on 31.03.2005 but the seizure list mentions about the First Information Report, however, such practice is relevant that the seizure list may not be misplaced or mixed up with the other cases. 28. However, the First Information Report mentions that the I. O. was a member of the raiding party. This does not prejudice the accused and hence is of no consequence. 29. Leaner counsel for the appellants has further contended that there is violation of Section 42 (ii) of the Act that amongst the accused there was a lady but search was made without a lady constable and there is violation of Section 100. However, the violation of a provision of Section 42 or 100, ipso 14 facto, does not vitiate the trial unless prejudice is shown to have caused, so it has been well settled that the only question is to see whether there is prejudice. 30. However, no prejudice is shown to have caused to the accused. It has further been contended that there is violation of Section 55 of the NDPS Act as the search and seizure are neither proper and even the seized article were not sealed nor there is violation of the instruction issued by the NCB that the seized article be sealed at the spot. 31. However, it has well been settled that merely violation of an instruction may not vitiate the trial or the violation of the procedural provision may not ipso facto vitiate the trial. 32. However, the question for consideration is whether such violation has caused prejudice to the accused. However, having regard to the facts and circumstance the violation of Section 100 Cr.P.C or violation of Section 42 (ii) that after search and seizure the matter was not reported to the Senior Police Officer, in the evidence, the informant has stated that the matter was reported to the Senior Police Officer and hence, there is compliance, however, non compliance itself also shall not make the trial to be vitiated. 33. However, one of the important questions raised is that the articles were seized on the spot and seizure list was prepared but there is violation of the instruction that the seized articles were not sealed at the time of seizure and it has been contended that there is violation of statutory provision of seizure and 15 hence it is violation of Section 55 of the NDPS Act and though the chemical examination has proved the article to be Ganja but a doubt has been created that whether the sample sent for chemical examination were of the same article which has been recovered and seized from the possession of the accused person or the vehicle. However, the fact remains that Ganja was seized on 30.02.2005 which was not sealed either by the informant or by the I.O. The Ganja was handed over to the I.O on 31.03.2005 by the informant. On 31.03.2005 itself the Ganja was not sealed and the Ganja was put at Malkhana. In Malkhana also Ganja was kept without being sealed either by the I.O or the informant. Thereafter on 11.05.2005, that is, after