CRIMINAL APPEAL No.409 OF 2007 WITH CRIMINAL APPEAL NO. 621 OF 2007 ******* (in the matter of appeals under section 374 (2) and 389 (1) of the Code of Criminal Procedure against the judgment of conviction dated 09.04.2007 and order of sentence dated 12.04.2007 passed in special case no. 49 of 2003 by Sri Brajendra Kumar Srivastava, Additional Sessions Judge IX, Patna) ********* MANOJ RAI, SON OF TUYLSI RAI, RESIDENT OF VILLAGE MOHANPUR, POLICE STATION RAGHOPUR, DISTRICT VAISHALI ……… …………… ……………APPELLANT ( IN CR. APP. 409/2007) AND BIRENDRA KUMAR, SON OF SHRI RAMDEO PRASAD YADAV, RESIDENT OF VILLAGE RAMJANIPUR, POLICE STATION KAHALGAON, DISTRICT BHAGALPUR ………………………………....APPELLANT (IN CR. APP. 621/2007) VERSUS THE STATE OF BIHAR ……………………RESPONDENT (IN BOTH THE APPEALS) *********** FOR THE APPELLANTS :- MR. RAJIV RANJAN SINHA, ADVOCATE. (in both the appeals) FOR THE S T A T E :- MR. S. N. PRASAD, A. P. P. (in both the appeals) ********** P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan,J. Manoj Rai is the appellant of Criminal Appeal No. 409 of 2007 whereas Birendra Kumar is the appellaqnt in Criminal Appeal No. 621 of 2007. Both the appellants 2 have been convicted to undergo rigorous imprisonment for ten years with a fine of Rs. One lack and in default of which further to go rigorous imprisonment for one year under Section 20 (b) (1) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act). The prosecution case in short is that on 04.11.2003 at about 5 PM, the informant S.I. Jay Shankar Singh (PW 7) was on petroling duty and when he reached near the Dildarganj over bridge, he was two young boys carrying attaches and three air bags. The boys who are the appellants disclosed that they were on the way to Patna. The informant found that the appellants were nervous regarding their luggage and on suspicion, made a search of their luggage and it is alleged that 12 bags of Ganja were recovered from the attaichi and 10 kgs. of Ganja was recovered from a red bag from the appellant Manoj Rai. It is also alleged that 10.5 kgs. of Ganja was recovered from the red air bag carrying by the appellant Birendra Kumar and 11 kgs. of Ganja from the grey air bag. Seizure list was prepared which was signed by two independent witnesses, PWs 5 and 6. When the trial commenced, there were eight witnesses. PW1 to PW 6 were declared hostile. The seizure list witnesses PWs 5 and 6 did not accept that they were 3 present at the time of the recovery and merely stated that they had signed on a blank paper. The Trial Court has convicted the appellants on the testimonies of PWs 7 and 8 i.e. S.I. Jay Shankar Singh who made the seizure and PW 8 the Investigating Officer of the present case. PW 7 has supported the prosecution case inasmuch as he has stated that he had recovered the Ganja from the luggage of the two appellants. The seizure list is marked as Exhibit-2 and the First Information Report is marked as Exhibit-3 & 3/1. Similarly, the Investigating Officer (PW 8) has also supported the seizure and stated that recovery of 20/22 kgs. of Ganja were made from each of the appellants. Two questions arise in this appeal for consideration of this Court. Firstly, it is submitted that the seizure list would disclose that Ganja was in a polythene bags and tied with strings in nine different bags. Thus, it was not possible for the Investigating Officer to actually guess the weight of the packs. It has been submitted on behalf of the prosecution that PW 7, the informant and PW 8, the Investigating Officer have disclosed in the F.I.R. that they were told by the appellants that the Ganja weighed about 44 kgs. These witnesses have not supported this aspect in their evidence. The witnesses have not stated as 4 to whether they subsequently got the packets weighed or not. The seizure list does not disclose the size of the packets and as such it could not be presumed that the Ganja seized from the appellants would disclose the amount of Ganja found in each of the packets. The informant is specific in stating that one of the air bags contained 10 kgs whereas one packet contained 500 grams and other two packets contained 1.5 kgs. each and others 10 kgs. These facts remained unsupported by any scientific evidence whatsoever. Secondly, it is submitted that once the seizure list was prepared, the contrabanned substance was allegedly kept in the Malkhana. The subsequent reports or the evidence in Court, is silent and does not disclose as to how the samples were taken. It should have been specifically stated that the samples were taken from each of the packets in order to ascertain that all the packets contained Ganja before the appellants could have been convicted under the aforesaid Act. At this stage it may also be stated that the date of seizure is 4.11.2003 whereas the seized substance was sent to the Forensic Science Laboratory for examination on 6.1.2004 and the report was received after a gap of two years. The delay in sending the seized articles without mentioning the quantity sent for examination and 5 the delay in receipt of the report raises great doubt with respect to authenticity of the procedure of getting the drugs/narcotic substance examined by the Forensic Science Laboratory. No explanation has been given as to where the seized substance was kept during the intervening period, much less, is there any explanation for the delay in sending the seized substance to the Forensic Science Laboratory. On the basis of the facts aforesaid, this court finds that the appellants have been convicted merely on the presumption that they were carrying large quantity of Ganja and have been meted out the punishment under section 20 (1) (c) of the Narcotic Drugs & Psychotropic Substances Act which envisages imprisonment of not less than ten years to be extended up to twenty years and also a fine of not less than Rs. 1 lakh which may be extended to Rs. 2 lakhs. The prosecution has no way to know either the actual weight of the seized substance and the entire procedure with respect to seizure and delay in sending the seized articles for its examination suffers from serious irregularity and the appellants cannot be convicted in view of the aforesaid findings. The delay in sending the seized articles for its examination is fatal to the prosecution is law laid down 6 by a Division Bench judgment in the case of Biren Mandal vs. State of Bihar, 2006 (4) PLJR 652. In view of the aforesaid facts, the conviction and sentence of the appellants is set aside and they are discharged from the liabilities of their bail bonds. In the result, these two appeals are allowed. ( Sheema Ali Khan, J. ) Patna High Court March 31st, 2009 A.F.R./Anand/haque