CRIMINAL APPEAL (DB) No. 354 OF 2008 Against the judgment of conviction and order of sentence dated 05.02.2008 and 14.02.2008 passed by Sri Krishna Prasad Verma, Additional District and Sessions Judge- cum-Special Judge, Buxar NDPS Act, in Case No. 27 of 2002 SHIKARI DHOBI, SON OF LATE SHIO PUJAN DHOBI, RESIDENT OF VILLAGE – NAGPURA, P.S. – SIMARI, DISTRICT – BUXAR. WITH CRIMINAL APPEAL (DB) No. 519 OF 2008 GORAK MAHTO, SON OF LATE MUNILAL MAHTO, RESIDENT OF VILLAGE – NAGPURA, P.S. – SIMARI, DISTRICT – BUXAR. WITH CRIMINAL APPEAL (DB) No. 521 OF 2008 BHAGWAN SAH, SON OF SOMARU SAH, RESIDENT OF VILLAGE – NAGPURA, P.S. – SIMARI, DISTRICT – BUXAR. WITH CRIMINAL APPEAL (DB) No. 689 OF 2008 RAVINDRA CHOUBEY, SON OF LATE BIHARI CHOUBEY, RESIDENT OF VILLAGE – NAGPURA, P.S. – SIMARI, DISTRICT – BUXAR. ………………. APPELLANTS. VERSUS THE STAE OF BIHAR ………………….. RESPONDENT. FOR THE APPELLANTS :- MR. K.N.CHAUBY, SR. ADVOCATE. MR. SANJAY KUMAR OJHA, ADOVATE. MR. AKHILESHWAR PRASAD SINGH, ADVOACTE. MR. SANDIP KUMAR GAUTAM (AMICUS CURIAE). MR. JAGDISH PRASAD NO. 1, ADVOCATE MR. ANIRUDH MISHRA, ADVOCATE. FOR THE STATE :- MR. ASHWINI KUMAR SINHA. P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD 2 Gopal Prasad, J. These four appeals have been heard together and are being disposed of by this common judgment as the four cases arise out of the common order of conviction and sentence dated 05.02.2008 passed in NDPS Case No. 27 of 2002 by the Additional District & Sessions Judge – cum – Special Judge, Banka, by which appellants have been convicted under Section 20 (b) (ii) (c) of the NDPS Act and have been sentenced to undergo rigorous imprisonment for 15 years each and a fine of Rs.1,50,000/- and in case of non payment of fine they have to undergo further imprisonment of 1/4th of 15 years. However, he has ordered that both the sentence shall run concurrently. 2. The prosecution case as alleged in the ferdbeyan and the written report of the informant Ashok Kumar Jha is that he is the S.I., Officer- In-Charge of Simari P.S on 12.11.2002. On 12.11.2002 at about 11:00 A.M while he came at Simari P.S in connection with the investigation of the Simari P.S Case No. 125 of 2002 and interrogated accused Rangila Sah from his confessional statement before the Block Development Officer and from other sources as well as the secret information, learnt that one Murali Singh and Krishna Singh of village 3 Balihar does illicit business of Ganja and one of the main centers of their Ganja business is at village Nagpura and one Vikram Rai his son Amar Jeet Rai and his relative Mantosh Singh and others stock and sell Ganja in Collaboration and active participation of Vikram Rai, Amar Jeet Rai and Mantosh Singh keeps the Ganja in the house of the co- villager Ravindra Chouba, Kashi Nath Sah, Satyanarayan Kumar, Gorakh Mahato, Sikari Dhobi, Sri Bhagwan Sah and does illicit business of Ganja and distribute their shares in the business and since on 11.11.2002 there was raid in the village Balihar and so there is strong probability of finding or recovery of Ganja at village Nagpura from the house of the aforesaid persons. 3. The further case of the informant in the First Information Report that the information received was immediately communicated by telephone to Jitendra Prasad (S.D.P.O.), Sub-Divisional Police Officer, Nagpura and the SDPO authorized the informant to arrange the conduct of raid and inform the (SDPO) is also reaching at the Police Station. On the said information the informant recorded in diary of the Police Station as Sanha No. 210 of 2002 dated 12.11.2002. The informant in 4 pursuance of order of Superintendent of Police received from special messenger had taken the charge of Officer – In – Charge of Simari Police Station and constituted a raiding party including the SDPO, Block Development Officer, Simari and other police personnel and came to the village Nagpura along with the members of the raiding party and dividing the raiding party in several part and on identifying by the local Chaukidar, Badari Yadav surrounded the house of Ravindra Chauba, Kashi Ram, Bhagwan Sah, Gorukh Mahto, Sikari Dhobi and others. On seeing the police some villagers collected there and out of them Bishwanath Mishra P.W. 4, Ramdev Kharwar P.W. 5 were called as independent witness and thereafter in presence of S.D.P.O, Dumrao, B.D.O., Simari, S.I. Brahmpura the houses were searched one after another. First at 12:45 P.M the house of Ravindra Chauba was searched and from this house 19 packets of Ganja were recovered which were concealed in a big box, from a room to the west of the court yards and 29 packets Ganja was recovered from a tiled roof room, east of the court yard which all in weight as 215 Kg. and 314 Kg. respectively and from each packet small amount of the Ganja was taken 5 up, mixed and a sample was prepared which was marked as S/1 and sealed the rest of the Ganja packed in different packets was marked as Ext. A/1 to A/11 and all the packets were sealed and the seizure list was prepared before the two independent witnesses as well as the S.D.P.O., Dumrao, B.D.O., Simari and Inspector of Police, Brampura who signed seizure list prepared a copy of the said seizure list was tendered to Dhani Devi, wife of Ravindra Chauba but she refused to receive or sign on the exhibits and so those documents were pasted on the wall of the house and similarly a raid was conducted in the house of one Satyanarayan Kankar and the articles seized received from his house was sealed with a mark of A/1 to A/18 after taking the sample from each packet and the sample was also sealed which has been marked as S 2 and similarly from the house of Gorakh Mahto 37 packets of Ganja was seized from a room finding net weight about 436 Kg. seizure list prepared before the independent witness. S.D.P.O, B.D.O and other Police Officer and the said packets seized were prepared as A 19 to A 27 and after taking the sample from each packet and the said sample was sealed and the articles seized were also sealed and on the said 6 sample and the sealed seized articles the signature of the witnesses S.D.P.O, B.D.O and other Police Officers on seizure list. It has further been alleged that during raid by the Police, Gorakh Mahto along with this family members flew away leaving the house open. 4. The further case is that in similar manner the house of Sikari Dhobi was also raided and from the east part of the court yards 35 packets of Ganja were recovered from other rooms, in all weighing about 4.48 Kg. and with regard to those seized Ganja, the seizure lists were prepared on which independent witnesses and the Police Officers including the S.D.P.O, B.D.O and others signed. 5. The further case is that Sitara Devi the wife of Sikari Dhobi disclosed during the raid that the seized Ganja has been kept by Vikrama Ram and Amar Jeet Rai, Mantosh Singh, Murali Singh, Krishna Singh. Out of the said seized packets were sealed after taking out the sample of each packet and the said sample was packed and sealed as S 4 with the signature of the independent witness S.D.P.O, B.D.O and others and again the raid was conducted in the house of Bhagwan Singh and 29 packets from the room in the other portion of 7 the court yard to the tune of 29 packets weighing about 343 Kg. and for which the seizure list prepared and signed and the seized articles were sealed after taking sample from each packet in small amount and the said sample was marked as S 5 which was sealed and the articles seized were kept in different packets marked as A 37 to A 43 and similarly in the house of Kashinath also the raid was conducted and articles seized were sealed after taking the sameple from each packet marked as S 5 – S 6 and thereafter all the residential houses of Vikrama Rai were searched but no Ganja was recovered though it has been stated that from the house the smell of Ganja was coming out and it appears that having smell of raid by Police, the Ganja may have been removed. 6. On the basis of the written report the FIR was lodged on 12.11.2002, further, the FIR was received in the court of the Special Judge on 16.11.2002 and after investigation the charge sheet was submitted against the accused persons. On submission of charge sheet cognizance was taken and charges were framed against the accused Bhagwan Sah, Ravindra Choubey, Gorakh Mahto, Sikari Dhobi charged under Section 20 (b) (11) (c) of the NDPS Act. Further, 8 Krishna Singh, Amar Jeet Singh and Vikarama Singh were charged under Section 20 (b) (ii) (c) as well as under Section 27 (A)/(29) of the NDPS Act. However, during the trial 13 witnesses were examined who are P.W. 1 Ashok Kumar Jha, P.W. 2 Bisundeo Prasad, P.W. 3 Mahavir Paswan, P.W. 4 Bishwanath Prasad, P.W. 5 Ramdev Kharwar, P.W. 6 Chandrama Prasad, P.W. 7 Rajeev Kumar, P.W. 8 Dhanji Devi, P.W. 9 Tatari Devi, P.W. 10 Jay Prakash Singh, P.W. 11 Dr. Kapileshwar Chaudhary, P.W. 12 Nandji Singh, P.W. 13 Yogendra Prasad, Sub- Inspector were examined. 7. The documentary evidence adduced are Ext. 1 seizure list consisting from the house of Ravindra Chauba, Ext. 2 signature of Ashok Jha the endorsement of Ashok Jha on the seizure list Ext. 1/1 seizure list from the house of Satyanarayan Kamkar, Ext. 2/1 endorsement of Ashok Jha on the seizure list, Ext. ½ the seizure list consisting Gorak Mahto, Ext. 2/2 the endorsement of Ashok Jha on the said seizure list of Gorakh Mahto Ext. 1/3 is the seizure list of records Shikari Dhobi, Ext. 2/3 endorsement of Ashok Jha on the said seizure list, Ext. ¼ seizure list regarding Bhagwan Sah, Ext. 2/4 endorsement 9 of Ashok Jha on the said seizure list, Ext. 1/5 seizure list consisting the seizure from the house of Kashinath Sah, Ext. 2/5 endorsement of Ashok Jha on the said seizure list, Ext. 1/5, Ext. 3 is the statement of the informant Ashok Kumar Jha, Ext. 3/1 is the formal FIR, Ext. F is the seal specimen, Ext. 5 is a petition for producing the sample in Court, Ext. 5/1 is a petition for producing the seized exhibit in Court, Ext. 6 is the order dated 18.11.2002, Ext. 6/1 copy of the order dated 16.12.2002 Ext. 2/6 is the endorsement of S.I. Ashok Jha on the order sheet, Ext. 7 the carbon copy statement of Rangeela Sah recorded by the BDO Bishun Dev Prasad, Ext. 8 the seizure list consisting the seizure from the house of Rajendra Chauba, Ext. 8/1 the signature of Bishnu Dev Prasad Ext. 8, 8/1, 8/2, 8/3, 8/4 and 8/5 are the signature of Bishun Dev Prasad on the seizure list regarding the seizure from the house of Rabindra Chauba, Satyanarayan Kankar, Gorakh Mahto, Sikari Dhobi, Bhagwan Sah, Kasinath Sah. Ext. 9 station diary entry, Ext. 8/6 to 8/17 is the signature of the witnesses on the seizure list, Ext. 10 specimen of the seal, Ext. 11 the report of Judicial Magistrate J.P. Sinha, Ext. 12 is the certificate, Ext. 13 F.S.L report, Ext. 14 10 distribution report, Ext. 15 is authorizationship, X/2, X/39 of mark of identification of 40 photographs of the seize Materials Ext. 1 and 1/1 is the material present from Malkhana, Material Ext. 2 is the sealed key. 8. On considering the oral and documentary evidence and considering the submission of the parties the order of conviction and sentence as mentioned above have been passed. 9. The statement of accused Sikari Dhobi, Ravindra Chauba, Bhagwan Sah, Gorakh Mahto, Shasikant Chauba, Ramjee Chauba, Asturanga Devi, Kamleshwar Mishra, Santosh Kumar Mishra have been recorded under Section 235 (ii) of the Cr.P.C. 10. Learned counsel for the appellants, however, contended that there are various infirmities in the prosecution story as there is delay in sending the FIR to the Magistrate as occurrence is alleged to be dated 12.11.2002 but the FIR has been received in the court on 16.11.2002 and there is illegality in search and seizure. It has further been contended that the Juniors Sub-Inspector of Police was not authorized to conduct the raid and hence it is violation of Section 41 of the NDPS Act. It has further been contended that the accused persons were not 11 found at the spot neither were arrested on the spot and mere recovery in their absence cannot hold them guilty as they cannot be said to have been in conscious possession when there was only family inmate of the house and one of the accused Gorakh was residing at Ludhiana along with his family and mere recovery without any further evidence about their involvement in smuggling and doing the business of Ganja the accused persons cannot be held guilty for offence under Section 20 (b) (ii) (c) or 23 (c) of the NDPS Act and further there is illegality in search and seizure and the accused persons are poor persons of the lower section of the society and they cannot be said to have afforded the huge business of Ganja and the main culprits Vikaram and others have been protected implicating the accused persons. 11. Learned counsel for the State, however, contended that the mere delay in sending the FIR to the Court may not be a sole ground for setting aside the conviction and no prejudice has been caused to the accused persons and when the prosecution has been able to establish well prove that the accused appellants in possession of Ganja they cannot be absolved for the only ground that there is delay and once a 12 narcotics were recovered from their possession. The presumption under Section 37 of the NDPS is against them and it is for them to discharge the onus that they were not in conscious possession of the seized articles. However, they have taken the plea of their residing at some other place and one of them taken the plea of his being away from the place and one of the Gorakh Mahto having taken the plea of resident of Ludhiyana but this plea has not been taken during the trial but this plea has been advanced at the appellate stage which is after thought and the prosecution has well established the charge leveled against the accused persons to prove the prosecution case. The Sub-Inspector is authorized to conduct the search and seizure under Section 41 of the NDPS Act whether he is Senior or Junior. 12. Hence, taking into consideration the respective submission of the parties the question for consideration whether the prosecution has been able to prove the charges leveled against the accused persons beyond reasonable doubts. Hence, I proceed to consider the evidence in light of the submission and the prosecution case as set out by the prosecution. Hence, the prosecution as alleged that the informant during 13 investigation of Simari Police Station Case No. 125 of 2002 taking into consideration the confessional statement of accused Rangella Sah about the smuggling of Ganja by Murali Singh, Krishna Singh, Vikaram Singh, Amar Jeet and about the recovery of Ganja at village Balihar and there is probality of Ganja being recovered at Nagpura in the house of Ravindra Chauba, Satyanarayan Kamkar, Kashi Nath Ram, Bhagwan Sah, Sikari Dhobi as they were engaged in stocking and smuggling of Ganja. The informant having received the information informed one Chandrama Prasad S.D.P.O, Dumrao and Chandrama Prasad authorized the informant to conduct a raid and even Chandrama Prasad reached along with the forces and then raiding party was constituted and raid conducted at village Nagpura with the recovery of huge amount of Ganja from the house of Ravindra Chauba, Gorakh Nath, Sikari Dhobi, Bhagwan Sah, Kashi Nath Sah and Satyanarayan Kankar. The Ganja was seized before an independent witness and out of the said seized Ganja from each packet some amount of Ganja was taken out, mixed together and from homogenous mixture samples were taken and thereafter the sample and the seized Ganja were sealed, 14 seizure list prepared and the sample were sent to the Forensic Science Laboratory for chemical examination and the chemical examination report proved that the said seized articles were Ganja. 13. P.W. 1 is the informant and he has stated in his evidence that on 12.11.2002 he was posted as Junior Sub-Inspector in the Buxar Police Station and on the said date he assume the charge of Officer In Charge, Simari by the order of Superintendent of Police and assumed the charge as Officer-In-Charge, Simari and during investigation of case bearing Simari P.S. Case No. 125 of 2004 during the enquiry of interrogation of one accused Rangeela Sah, the statement of Rangeela Sah was recorded under Section 164 before the Block Development Officer and from which it transpires that Murali Singh, Krishan Singh were doing the business of Ganja along with them Bikramaram, Amarjeet Ram, Mantosh Singh are in active participation and they abused to keep the Ganja in the house of Ravindra Chaubey, Satyanarayan Mahto, Gorukh Mahto, Sikari Dhobi, Bhagwan Sah and Sashinath Sah in the business and take shares and this was communicated to Chandrama Prasad SDPO, Dumrao and thereafter on the direction and the said Chandrama 15 Prasad authorized him for conducting the raid on the said information and even stated that he is also reaching and he came along with the armed forces and under the leadership of the said Chandrama Prasad a raiding party was constituted, Bishundev Prasad, Block Development Officer, Sahabuddin Khan, Shir Ram Mishra, ASI, Simari and others and the authority proceeded for Nagpura reached at 12:40 P.M and divided the raiding party in seven parts and on the identification of the houses of the accused persons by local chaukidar Badrinath they raided the house of the accused persons and on seeing the police people collected so two persons where chosen from the persons collected as independent witness who were Bishunath Mishra and Ramdev Kharwal and the raid was conducted at 12:45 in the house of Ravindra Chaubey and (from his house 29 packets of Ganja) from room in the courtyard and 19 packets of Ganja found recovered, from his house from the room in his courtyard from a Box and 19 packets from a room weighing about 345 Kg. and 215 Kg. respectively in presence of independent witnesses and from those packets some amount of Ganja was taken from each packets and which was mixed together 16 homogeneous and from that a sample was taken from the said mixture marked S/1 sealed seized Ganja were sealed in 11 gunny packet marked as Ext. A /1 to A/11 and the said seizure and seal were made before the independent witnesses and Block Development Officer as well as informant and they also signed and from similar manner raid was conducted from the house of Satyanarayan from his house 37 packets of Ganja in all weighing about 430 Kg. and homogeneous mixture prepared from taking samples from each of the packet and the said sample taken was sealed and marked as S/2 and the seized ganja in different gunny bag were marked as Ext. A/19 to A/27 and sealed thereafter in similar manner with regard to the sealed ganja, seizure list were prepared which were signed by the independent witness, Block Development Officer and other witnesses. The seizure list was marked as Ext. 1 and in the same manner the raid conducted in the house of Sikari Dhobi at 4:00 P.M and 35 bags of ganja weighing about 458 Kg. recovered and sample prepared from the homogenous mixture ganja taken from each packet and said sample as S/4 and thereafter the sample and the ganja in gunny bags were marked as Ext. A 28 to A 36 17 were sealed, seizure list prepared. Subsequently, the raid conducted in the house of Bhagwan Sah at 4:40 P.M and 29 packets of ganja recovered from his house all weighing about 343 Kg. and the sample taken out of each packet in homogenous mixture taken as sample S/5 and the seized ganja in gunny bags were sealed and marked as Ext. A 37 to A 42 and the samples sealed as S-5. Further from the house of Kashi Nath at 6:00 P.M and 385 Kg. of Ganja recovered from 32 packets as well as ganja in three gunny packet weighing about 26, 33 and 28 Kg. and sample taken from each packet and homogenous mixture made marks as S-6 and sealed and the seized ganja were sealed in gunny bag marked as Ext. A 44 to A 56. All the seized ganja was seized after conducting the raid before the independent witness, the BDO and the raiding party and seizure list was duly prepared and signed by the independent witnesses. BDO, SDPO and other police officers and which have been marked as Ext. 1/1, 1/2, 1/3, 1/4, 1/5 and 1/6 respectively. The raid was also conducted at the house of Bikramaram and no ganja was recovered. He has proved his written statement in his pen and signature marked as Ext. 3 as proved the 18 formal FIR drawn as 3/1. He has also proved the testified of a seal by which the sample and article were seized at the P.O in his writing and signature which has been marked as Ext. 4. He has also proved the sample having been sent for perusal of the court with a petition and the said petition has been marked as Ext. 5 and thereafter procure the order for keeping it as seized places and has proved the order as Ext. 6 and even proved the petition for keeping the seized article for perusal and for direction keeping it in several places which has been marked as Ext. 5/1. He has also proved the order of the special court for keeping it in Malkhana which has been marked as Ext. 6/1 and has also proved the topography of the seized article which has been marked as X to X/39 for identification. 14. P.W. 2 is the BDO, he has proved the statement of Rangeela Sah marked as Ext. 7 and he has proved the signature on the seizure list regarding articles seized which has been marked as Ext. A to A/5 regarding the articles seized from the accused persons. 15. P.W. 3 has proved the station diary entry dated 14.12.2003 marked as Ext. 9. 19 16. P.W. 4 is the Bishwanath Mishra, the seizure list witness. He has proved his signature on the seizure list with regard to the recovery of the ganja from the house of the accused persons which has been marked as Ext. 8/6, 8/7 and 8/11. 17. P.W. 5 Ramdev Kharwal who is also the seizure list and though he proved the seizure list marked as Ext. 8/12 to 8/17, has not supported the prosecution case about the seizure before him and has been declared hostile by the prosecution drawing the attention. P.Ws. 4 and 5 about his earlier statement before police having supported the prosecution case regarding the seizure in his presence. 18. However, it is relevant to mention that I.O. (P.W. 12) in his evidence at para 5 has stated that Bishwanath Mishra and Ramdev Kharwal has stated before him about the recovery of Ganja and preparation of sample and his signature and he has signed on the sample and seizure list. 19. P.W. 6 is Dy. S. P., Chandrama Prasad, he has supported the prosecution case about the conduct of the raid and seizure from the accused persons about the ganja supporting the case of his prosecution. 20 20. P.W.