1 IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL No.306 OF 2010 - - - - DIPAK KUMAR son of Shyam Babu Yadav, resident of Mohalla Nehru Chak, Garh Per, Badi Patan Devi, P.O. Nehru Chak, P.S.Alamganj,District Patna … … Appellant Versus THE STATE OF BIHAR … … Respondent For the appellant: Shri Rana Pratap Singh,Sr. Advocate, assisted by Sarbshri Sumant Singh, Aruni Singh and Rakesh Kumar ‘RAKA’,Advocates. For the State: Shri Ashwini Kumar Sinha, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA - - - - Mridula Mishra & Dharnidhar Jha, JJ.- The solitary appellant Dipak Kumar was put on trial by learned Additional Sessions Judge-VII, Patna, in Special Case No.44 of 2007 by framing charge under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (N.D.P.S. Act for short) and by the judgment delivered on the 30th day of January, 2010, was found guilty of committing the said offence. After hearing the appellant on sentence on 8.2.2010, the learned Judge directed the appellant to suffer rigorous imprisonment for fifteen years as also to pay a fine of Rs. 1.5 lac, else, to undergo rigorous imprisonment for a further period of three years. The appellant has 2 appealed against the said judgment of conviction and order of sentence through the present appeal. 2. P.W. 2, informant Krishna Kumar Singh addressed his written report to the learned Special Judge, under N.D.P.S.Act, Patna, and on that basis the police registered a case, vide Alamganj Police Station Case No.260 of 2007. It was stated in the written report by P.W.2 that he had received a secret information while he was on patrolling duty on 24.8.2007 at 7.30 A.M. that the appellant had retained some articles obtained through commission of dacoity and if a raid was conducted the articles and the dacoits could be found there. A raiding party was formed and the house of the appellant was allegedly surrounded by the police. The informant entered inside the house of the appellant and after pointing out the purpose of his entry into the house, wanted to search the same in presence of independent witnesses, Raju Kumar(P.W.8) and Rajendra Gope (P.W.6.) It was alleged that during the course of search of the house no looted article could be found. However, ganja about 20.5 K.Gs. was found kept under the bed which was bundled up in some plastic sheet and had been tied with rope. All rooms of the house were searched, but no further 3 recovery was made except the above recovery of ganja. 3. The appellant was questioned, as per the allegation, and he pointed out that he used to indulge in selling ganja by making purias (sachets) of the value of Rs.3,8 and 12 and that exercise was carried out in his another house which was situated in Hajmagali. Accordingly, the informant came to that particular house said to be belonging to the appellant and started searching the same at 10.30 A.M. On search of one of the rooms a polythene packet was found containing 1.5 K.G. of ganja. Besides, two hundred small packets of plastic and some pieces of paper were also recovered which could be used in making purias for selling ganja. 4. On the above allegation the appellant was arrested. The informant stated that he prepared samples out of the seized ganja and got the signatures of the seizure list witnesses on those sealed packets besides signing the same himself. 5. On the basis of the above written report of P.W.2,the case was registered and investigation was handed over to P.W.1 Sri 4 Rajeshwar Prasad Mishra who after close of the investigation sent up the appellant for trial. 6. The defence of the appellant was that the part of the house from where the first recovery of 20.5 K.Gs. of ganja was made by the informant was in possession of the tenant, namely, Jagdanand Yadav and when he came back from outside he was informed by his mother that that tenanted part of the house was searched by the police and they had taken some belongings of the tenant Jagadanand Yadav with them and the appellant was required to meet the police Officer. The appellant further pleaded that when he went to meet the police officer along with his younger brother he and his younger brother were made to sign some papers and the appellant was put in the lock up and was implicated by the informant in the present case. 7. For proving the charge against the appellant, the prosecution examined a total number of eight witnesses as also one court witness, namely, Ram Lallan Kumar. The witnesses to seizure, i.e., P.Ws. 6 and 8 appear not supporting the search and seizure of the house of the appellant and recovery of any article, though one of them, namely, Raju Kumar, P.W.8 stated 5 that the seizure memo Ext. 1/1 was bearing his signature. Other witnesses, like, P.Ws., 1,2,3,4,5 and 7 were all members of the raiding party and they supported the story as told by P.W.2 in his written report. 8. Shri Rana Pratap Singh, learned senior counsel appearing for the appellant has submitted that seized articles appear not kept in Malkhana as no evidence has been laid by the prosecution that after recovery of the seized ganja it was put into the charge of the Officer- in-charge of the Police Station by making the relevant entry into the Malakhana register after properly sealing the same as was required by Section 55 of the N.D.P.S. Act. Not only that, the Malkhana In-charge and the register maintained in that behalf were also not produced to indicate fully that the seized articles were indeed kept as per the requirement of law. The seized articles were also not produced in court nor was any evidence led to show that the court of Special Judge or, for that matter, any authorized Magistrate had ordered destruction of the same. It was contended further, as may appear from the evidence of P.W.1 Rajeshwar Prasad Mishra who appears to be the Investigating 6 Officer of the case who could be also a member of the raiding party, that the seizure was made ahead of preparing the written report and drawing up of the F.I.R., but curiously enough the two documents, Exts.1 and 1/1 appear bearing full description of the case with relevant sections of the offence already written on the two documents which indicates that those documents were subsequently prepared to create a false evidence. It was contended that as per the F.I.R. as also as per the evidence of P.Ws 1 and 2 the articles recovered were sealed on the said date and samples were also prepared there in presence of the witnesses but no panchnama or evidence of the witnesses testifying to those facts has been produced, neither the fact is supported by the evidence in the form of the report submitted by the Forensic Science Laboratory. It was contended in the above connection that if the articles were sealed and sampled on 24.8.2007 then it was supposed that the sealed packets ought to have bore that particular date but the report of the Forensic Science Laboratory indicates that it could have been done sometimes on 2.11.2007. It was contended further that even accepting for the sake of argument that it was done on 24.8.2007, 7 then also the question arises as to why the sealed articles were kept at the Police Station for such a long period right from 24.8.2007 to 2.11.2007 and why it was not dispatched to the Forensic Science Laboratory. The further contention in the above connection was that the Forensic Science Laboratory report is dated 22.12.2007, i.e., more than a year after the articles were received in the Forensic Science Laboratory and that further creates a doubt that the very recovered articles which were seized from the house of the appellant had been sent to the Forensic Science Laboratory for chemical analysis. Under similar circumstances, it was contended, the Supreme Court had acquitted the accused in Valsala Vs. State of Kerala reported in 1994 Cri.L.J.1. Likewise, this Court also in 2010(2) P.L.J.R. 228 Kallu Sheikh Vs. State of Bihar has taken a similar view as was taken by the Supreme Court in the case of Valsala( Supra). By citing another judgment of this Court reported in 2002(4) P.L.J.R. 687 Md.Zakir Hussain Vs. The State of Bihar it was contended that there was standing instruction of the Govt. of India directing sealing of the seized articles at the site of preparation of the Panchnama and 8 production of the evidence to the above effect in court, but no such evidence was produced and, as such, the whole case false under doubt. It was, lastly, contended that the Investigating Officer was a member of the raiding party who might have implicated the appellant so as to giving credence to the case. 9. Learned Additional Public Prosecutor Shri Ashwini Kumar Sinha was fairly conceding that the evidence on sampling and dispatch of the sampled articles to the Forensic Science Laboratory for chemical analysis was quite below the legal requirement as pointed out by learned defene counsel. It was contended that time and again the courts have been pointing out that some of the provisions of the N.D.P.S.Act are mandatory and some obligatory, but if the effect is causing prejudice to the accused then it could also vitiate the effect as regards the order of conviction. But, in spite of those decisions of several courts, the lower courts are not paying heed to that aspect of the case and judgment resulting in huge number of convictions are passed which are burdening the docket of this Court heavily. Shri Sinha was further moaning at the non-compliance of the mandatory provisions of 9 the N.D.P.S. Act by the investigating agency resulting into illegal acquittal of some of the accused persons who could be found in possession of some of the Narcotic and Psychotropic Substance or thing. Shri Sinha was stressing that it was high time that both the investigating agency as also the trial Judges look to those aspects of the law so as to tightening up their belts for proper investigation and trial of such accused. 10. We were taken through the evidence of the witnesses while hearing the present appeal by learned counsel appearing for the appellant and above all the evidence of the informant,p.W.2, besides the evidence of the Investigating Officer, namely, Rajeshwar Prasad Mishra, P.W. 1, who had also been a member of the raiding party. We are constrained to note that it might be a statement which could be in the form of written report which is the foundation of the present appeal in which there was a mention of the fact that samples were drawn from the seized articles at the spot itself in presence of the witnesses, namely, P.W. 6 and P.W. 8, but we find that evidence not coming either from P.W. 1 or from P.W.2 the informant. What appears from the 10 evidence of the two witnesses is that the articles were seized in presence of the two witnesses. What should have been done in such a case by the investigating agency was that it should have looked to Section 55 of N.D.P.S.C Act and should have transferred the seized articles to the custody of the Officer-in-charge of the Police Station which could be kept in the safe custody and under proper seal which was containing the signatures of both the Officer-in- charge of the Police Station and the Officer making the seizure. When the Officer investigating the case comes to take out the sample out of the seized article then also the presence of the Officer-in-charge of the Police Station who was handed over the custody of the articles is required mandatorily under Section 55 of the N.D.P.S. Act. It might be a case as was found in the decision of this Court in Md. Zakir Hussain Vs. The State of Bihar reported in 2002(4)P.L.J.R.687 that a particular standing order of the Central Government required that the sample be taken out at the spot itself. But, when there is a provision to that effect which has been held repeatedly mandatory then a deviation in complying with that particular provision of 11 the Act, to us, appears bearing its own effect on the fair investigation and trial of an accused. 11. We have pointed out at many occasions that the law, if we are permitted to say so, is draconian when we come to the sentences described under various provisions of the N.D.P.S. Act. There should not be a sentence of less than ten years. In some of the cases the minimum fine which could be imposed could not be less than one lac which may be enhanced in serious offences. If these substances are imposed less than the minimum prescribed then the law requires the court to record special reasons for that. These are some of the disabilities which have been framed by the legislature considering the seriousness of the offence which shall have the general effect on the health both financial and social of the society. The offence is likely to affect the financial set up of the country as also the same could be running a parallel economy affecting the financial health of the country. This is the reason that some mandatory provisions have been put in place while drafting the N.D.P.S. Act so as to creating checks and balances on the arbitrary and illegal use of power to enter into the premises, make search and 12 seizure, etc. and, as such, the courts have to satisfy that those provisions which are required to be complied have properly been complied. 12. Coming to the facts of the case, the evidence of P.Ws. 1 and 2 indicates that the witnesses P.Ws. 6 and 8 were witnesses to search and seizure, but P.W. 6 does not appear to have witnessed the search and seizure. However one of them, P.W. 8 has stated that he had witnessed some part of the seizure and the document Exrt. 1/1 was prepared on which he had put his signature. What was the recovery in presence of that particular witness was not disclosed. We have consistently pointed out that the two premises said to be belonging to the appellant were searched and from one of the said premises 20.5 K.Gs. ganja was recovered and the other recovery was from another premises of 1.5 K.Gs. of Ganja with some articles like polythene packets. The evidence lacks on the above point as to how the seized articles were weighed. Thus, we could conclude that it was an estimated weight. This inference of ours gets support when we consider the evidence of P.W. 2 Krishna Kumar Singh at page 18 of the Paper Book which indicates that the informant made diametrically a 13 contrary statement in his written report. He stated that from one room two bundles were recovered which were weighing 10. K.Gs. and 10 ½ K.Gs each. His written report indicates as if the ganja was kept in polythene packet which was bundled up in one and was tied by some ropes. P.Ws. 1 and 2 both have started that total quantity of ganja was 22 K.Gs. which was seized from the two premises. They have simply stated that three packets were prepared out of the seized articles. P.W.1 in his cross examination in paragraph 4 has stated that he had not entered into the case diary that seized articles were kept in Malkhana and further that an information to the above effect had been given to the court. He has further stated that there was no mention in the case diary that any seized articles were destroyed and an order in that behalf was taken from the court. He has stated that seized articles were kept in Malkhana, but he has stated that the said fact was not mentioned in the case diary. If the entry to that effect was not made in the case diary then we have to raise an inference that the articles would not have been kept in Malkhana. 14 13. We have just referred to Section 55 of the N.D.P.S. Act which requires transfer of the seized article to the Officer-in-charge of the Police Station for storage of the same in safe custody. When the law requires the article to be kept in safe custody then it has to be under proper seal of the seizing officer. In our opinion, if the article was kept in the safe custody then whole of the article had to be under proper seal of the seizing Officer by putting a seal over the quantity of the seized substance and if the sample had been taken out then that had to be done in presence of the Officer-in- charge of the Police station and that further required respective seals of both the Officers to be put over the packet containing sampled article. There is complete lack of evidence as regards compliance with the provision of Section 55 of the N.D.P.S.Act. 14. If we consider the other provision contained in Section 52A of the N.D.P.S.Act, it requires quick disposal. There was no evidence adduced on behalf of the prosecution that seized articles were produced in court nor there was any evidence on record to show as to how the substance was destroyed and on whose orders. Not 15 only that, what we find is that no document showing storage of the seized articles in the Malkhana was produced which could have been the best evidence by way of Malkhana register or by examining the Malkhana In-charge in the present case. Thus, there is no evidence that the searching officer had applied for deputation of a Magistrate for this purpose. These are some of the general features of the case. 15. The special feature as addressed to us by learned counsel for the appellant was the sampling and dispatch of the sampled articles. As per the evidence of P.Ws. 1 and 2 it is not definite as to when the samples were taken out. P.W. 1 in cross-examination in paragraph 4 at page 14 of the Paper Book has stated that the article was sealed in cloth. He did not remember the colour thereof. When we look to the report of the Forensic Science Laboratory, we find that three paper packets in which the seized articles were brought, had been delivered to the Forensic Science Laboratory. As per the prosecution, sampling had been done on the date of seizure, i.e., 24.8. 2007, but we find that it was forwarded to the Forensic Science Laboratory by memo no. 1534 dated 2.11.2007 By Rajeshwr Pd. 16 Mishra, P.W.1 and that was received in the office of the Forensic Science Laboratory on 15.11. 2007. Thus we find that the seized articles which were sampled on 24.8.2007, as per the prosecution, remained lying without any plausible explanation at the Police Station or in the custody of P.W.1 S.I.Rajeshwar Prasad Mishra for two months and twenty two days. There is no explanation in that behalf. If we assume that it was sampled on 2.11.2007, there was a delay of more than 13 days in reaching the office of the Forensic Science Laboratory from the Police Station. Besides, the report of the Forensic Science was prepared on 22.12.2008, i.e., after more than one and half years of the same having reached the Laboratory. In 1994 Cri. L.J.1 Valsala Vs. State of Kerala a delay of three months in sending the substance to the Forensic Science Laboratory was found sufficient to deny the very veracity of the report on the ground that the provision of the Act appeared harsher, it could very well raise a suspicion as to whether the substance which was sealed after sampling was the same or it had been changed in between the interregnum period. We find the similar situation obtaining in the present case. 17 The same view has been taken by this Court in the decision reported in 2010(2) P.L.J.R. 228 Kallu Sheikh Vs. State of Bihar. 16. For the above reasons, we find that it was not a fit case in which the trial court could have recorded the finding of the charge being brought home to the hilt against the appellant. The appellant ought to have been given benefit of doubt on account of the circumstances and reasons we have indicated above. 17. We, accordingly, allow the present appeal, set aside the judgment of conviction and order of sentence and acquit the present appellant. The appellant is in custody. He is directed to be released forthwith, if not wanted in any other case. 18. Before we part with the present judgment we express our concern over frequent orders of acquittal under N.D.P.S.Act on account of non- compliance of the provisions of the Act. Could it not be high time for the concerned authorities of the State Government or the enforcement agencies under N.D.P.S.Act to look to those frailties in the cases pending investigation so that those cases could not end in acquittal. 18 19. We desire that a copy of the present judgment be transmitted to the concerned departments of the Central Government as also the Director General of Police, Bihar, for needful. (Mridula Mishra,J.) ( Dharnidhar Jha, J.) Patna High Court The 22nd November, 2010 Kanth/A.F.R.