IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal No. 317 of 2007 ------------ (Against the Judgment of conviction and order of sentence dated 27th February 2007 passed by Sri Sushil Kumar, Addl. Sessions Judge- I, Bhojpur, Ara in N.D.P.S. Case No. 5 of 2003/12 of 2004. Molina Khatoon @ Malina Khatoon, W/o. Md. Rahman @ M. Rahman, R/o. Village- Hailan, P.S. Khanakul, Distt. Hoogli (West Behgal). ----------- Appellant. V. The State of Bihar ----- Respondent. For the appellant: Mr. Akhileshwar Prasad Singh, Advocate. Mr. Prabhat Kumar Singh, Advocate. Mr. Bimal Kumar, Advocate. For the State: Mr. Lala Kailash Bihari Prasad, Sr. Advocate. PRESENT THE HON’BLE MR. JUSTICE CHANDRA MOHAN PRASAD, ------------ Hon’ble C.M. Prasad, J. This appeal is against the Judgment of Conviction and Sentence dated 27.02.2007 of the Addl. Sessions Judge-I, Bhojpur, Ara passed in N.D.P.S. Case No.5 of 2003/12 of 2004, whereby the appellant, on having been found to have contravened the provisions of Section 8(c) of the N.D.P.S. Act (hereinafter referred to as the Act) due to having possessed 37 Kgs. of Ganja contained in her attaiche and airbag and therefore, she 2 was convicted under Section 20(b) of the Act and sentenced to suffer R.I. for ten years and to pay a fine of one lakh and in default of payment of fine to undergo R.I. for one year. 2. The informant (P.W.1), Raj Kumar Paswan stated in his written report (Ext-2) that on 09.07.2003 at about 8.05 a.m. he received telephonic information from the Superintendent of Police, Bhojpur that on Ara Barhara Pitch Road a female was going on Commander Jeep No.BR-3 7470 with Ganja contained in her attaché and bag and that the Jeep was coming from the side of Ara. Getting this information he registered a Station Diary entry at the P.S. and constituted a police raiding party, which was also joined by a Magistrate Mr. Rai Ram Lala, Labour Enforcement Officer, Koilwar, who was available at that time. The police party proceeded and at about 8.30 a.m. near Daulatpur village on Ara-Barhara Road, at a distance of about 15 meters from the Kali Mandir, they noticed that a Jeep bearing registration No. BR-3 7470 was coming from the side of Ara. The Jeep was stopped and in presence of witnesses 3 Ajay Kumar Tripathy (P.W.4) and Anil Kumar Singh (P.W.5) who were respectively the driver and owner of the Jeep as well as in presence of the Magistrate Rai Ram Lala (P.W.3) the jeep was searched. On search it was found that a female in suspicious condition was sitting on a seat situated behind the seat of the driver of the jeep and on being questioned the female disclosed her name as Molina Khatoon, the appellant. Informant further stated in the written report that on search of her blue colour attaiche and black colour air-bag ganja was recovered. Local Chaukidar was called and weighing balance was procured by him. Thereafter, the ganja wrapped in red colour polythin recovered from the attaiché was found to be weighting 25 Kgs and the ganja contained in red polythin and recovery from air-bag weighed 12 Kgs. The informant further stated in the written report that the Ganja was seized in presence of witnesses and four samples which was described as AS- 1, AS-2, BS-1 and BS-2 each of 50 gms was taken. It was also stated that the samples as well as the recovered Ganja was sealed at the spot in presence of the witnesses. 4 The informant also stated that on personal search of the appellant as taken by lady constable No.809 Kumti Devi, cash of Rs.2600/- and a three tier A.C.ticket for journey from Patna Junction to New Delhi on 9.07.2003 as well as a telephone bill regarding telephone No. 03211- 26512100000 was also recovered from the appellant and a Seizure List (Ext-1) for this was also prepared. The informant also stated in the written report that the appellant confessed before them that she was carrying the recovered Ganja in her attaiche and bag and that one day ago she had purchased the same from one Chaturbhuj Singh of village Ekona @ Rs. 900/- per Kg. As a consequence of the recovery and seizure as aforesaid the informant had prepared his written report and then he further stated to have handed over the seized Ganja and the sample to the Officer-in-Charge, Ara Muffasil P.S. within which jurisdiction the recovery was made. On the basis of the written report F.I.R. was instituted and investigation commenced. On completion of investigation charge sheet was submitted and then the appellant was put on trial and she has been convicted and 5 sentenced as above. 3. As many as seven witnesses were examined by the prosecution. Learned trial Court marked the F.S.L. report as Ext-3 under the provisions of Section 293 Cr.P.C. The F.S.L. report mentions that on examination the sample sent to it was found to be Ganja. 4. P.W.2 Raj Kumar Paswan is the informant himself. P.W.2 Manoj Kumar is the driver who was driving the jeep of the police raiding party. P.W.3 Rai Ram Lala, Labour Enforcement Officer is a Magistrate who had accompanied the raiding party at the time of search and he had also come to the P.S. when the information was lodged by the informant. P.W.4 Ajay Kumar Tripathy and P.W.5 Anil Kumar Singh are respectively driver and owner of the Commander Jeep in which the appellant was traveling and they are stated to be the witness on the point of the search and seizure from the possession of the appellant. 5. P.W.6 Shambhu Nath, Assistant Sub Inspector was a member of police party. P.W.7 Ram Babu Mandal, the O.C. of Ara Muffasil P.S. had 6 registered the F.I.R. at his P.S. and he had also investigated the case and submitted charge sheet after completion of the investigation. 6. The informant (P.W.1) stated in his evidence whatever was stated by him in his written report that on receiving information from Superintendent of Police, Bhojpur he had constituted a police raiding party, which was joined by a Magistrate P.W.6 and that when the jeep was found coming from Ara it was searched, as a result of which 25 Kgs Ganja contained in attaiche and 12 Kgs Ganja contained in airbag, as was being carried by the appellant, was recovered. He stated in his evidence that the Ganja had been weighed and it was seized at the place and sample was also taken and that seizure list (Ext-1) was also prepared at the spot and that witnesses Ajay Kumar Tripathy (P.W.4), Anil Kumar Singh (P.W.5) and the Magistrate Rai Ram Lala (P.W.3) had signed on the seizure list as witnesses. The informant also deposed that F.I.R. was lodged at Ara Muffasil P.S. on the basis of written report (Ext-2). He also stated that the seized Ganja and the accused was 7 handed over to the Officer-in-Charge, Ara Muffasil because the recovery had been made within his jurisdiction. It is remarkable that in his evidence the informant states to have recovered and seize the Ganja and prepared the seizure list at the spot and also to have taken sample from it but he does not say anywhere that he had sealed the seized Ganja or the sample. 7. The P.W.2 Manoj Kumar was the driver of the Jeep carrying the raiding party. He simply deposed that the Jeep was intercepted and searched and a lady was found carrying attaiche containing 25 Kgs and 12 Kgs of ganja were recovered and the seizure list was also prepared at the spot. This witness also does not say about the sealing of the recovered Ganja. 8. The P.W.3 is the Magistrate who had accompanied the raiding party. He deposed that on the orders of the S.D.O. Ara Sadar he had joined the raiding party and that on search of the briefcase and the airbag being carried by the lady in the jeep, 25 Kgs of Ganja was recovered. Thus, this witness says about recovery of only 25 Kgs of Ganja. He also deposed that the 8 informant had prepared a seizure list with regard to the recovery and he identified his signature Exts-1 & 1/1. He also stated that the sample of the Ganja was taken. This has to be remarkably noticed in his evidence that this witness who was a Magistrate accompanying the raiding party and who says about preparation of the seizure list at the spot, but he does not say about the sealing of the seized ganja or the samples. This witness appears to say in his examination-in-Chief that the seizure list was prepared at the spot but in his cross- examination at para-5 he states that after seizure he, along with raiding party had come to the Police Station meaning thereby Ara Muffasil P.S. He further deposed that he had remained at the P.S. till the seizure list was prepared there and that before preparation of the seizure list samples were also taken. Thus, according to the evidence at para-1 of this Magistrate witness, it would appear that the seizure list was prepared at the police station and samples were also taken there. As already stated this witness does not say anywhere in his evidence that the seized Ganja or the sample were sealed at any 9 time before him. He also stated in Para-15 of his cross- examination that after preparation of the seizure list and taking of sample at the police Station he had left that place. 9. The P.W.4 & 5, the driver and owner of the jeep, in which the appellant was traveling, have been examined by prosecution as important witness on the point of search and seizure, who also signed the seizure list. P.W.4 simply stated in his examination-in-chief that seizure list with respect of the recovery from the appellant contained his signature which was identified by him and it was proved as Ext-1/2. But this witness does not say in detail about the factum of recovery having been made in his presence. Rather, in his cross- examination he gave a categorical statement that the seizure had not been made in his presence and the police had obtained his signature on blank paper. Similar is the evidence of P.W.5, who in his examination in chief simply identified and accepted his signature (Ext-3) on the seizure list, but he does not say about the seizure being made in his presence, rather in his cross- 10 examination he categorically deposed that the seizure had not been made in his presence and that the signature has been obtained by the police on blank paper. According to the case of the prosecution, these two witnesses were present at the time of recovery and they had witnessed the search and seizure. But these two witnesses do not support the prosecution story in their evidence and the peculiar aspect of the case is that these two witnesses, who have given death blow to the prosecution story about the search and seizure have not been declared hostile by the prosecution and they have not been cross-examined by the prosecution even to suggest that they were stating any false evidence. It appears that the prosecution is not challenging their evidence. 10. The P.W.6 A.S.I., who had accompanied the raiding party had deposed about the recovery from the appellant and he also stated about the preparation of the seizure list at the spot. But this witness also does not say anywhere that the sample was sealed by the informant or by any other member of the raiding party. 11 11. P.W.7 Ram Babu Mandal is the Investigating Officer. He stated in his evidence that on 9.07.2003 at 11.30 a.m. the informant (P.W.1) gave out his written report and on the basis of the same he had instituted P.S. Case No. 112 of 2003 at his P.S. and had himself taken up investigation. He further stated in his evidence that in course of investigation he had inspected the P.O., which was situated at a distance of about 50 meters from Kali Mandir in village Daulatpur. He also stated that he had recorded the statement of witnesses Rai Ram Lala (P.W.3), Shambhu Nath Choudhary (P.w.6) and Kunti Devi (not examined) Manoj Kumar (P.W.2) and Anil Kumar (P.W.5) at the police station and he further stated that on completion of the investigation he had submitted the charge sheet. The examination-in-chief of this witness, in such an important case, is very brief and he does not say anywhere in his examination-in-chief that any seized Ganja or sample was produced by the informant before him or that he took charge of any such Ganja or sample. He simply stated that he had sent the seized article to the 12 Forensic Science Laboratory for examination, but there is no evidence as to who had prepared the sample and who had sealed it. At para-6 of his cross-examination he stated that the seized Ganja was not available at that time. There is no explanation in the evidence of this witness as to what happened to the seized Ganja or who kept it. Under the provisions of Section 55 of the Act, at least this witness, the I.O., who was an Officer-in-Charge of the P.S. and where the F.I.R. was lodged, has to show about taking of charge of the articles but there is no such evidence to show that he took charge of the seized Ganja or what happened to it. 12. During argument learned counsel for the appellant assailed the prosecution story on the ground that the search and seizure as stated by the prosecution is highly doubtful and no reliance can be placed on prosecution in this regard. It was also argued that the very mandatory requirements as provided under Section 55 of the Act have not been complied inasmuch as there is no evidence to show that the seized articles were sealed and were taken charge of by the concerned 13 Officer-in-Charge of the police station, where the F.I.R. was lodged. It was also argued that the provisions under Section 55 of the Act provides that when any Narcotic Substance is seized by any authority and its sample is taken, the sample has to be sealed by the seizing authority and Officer-in-Charge both but there is no evidence to show such. 13. On going through the evidence as discussed, it is clear that there is no evidence in the statement of any of the witnesses including the informant and Officer-in-Charge that the seized article had been sealed. There is also no evidence to show that the sample which is said to have been sent for chemical examination was sealed by the informant and the Officer-in-Charge as is compulsorily required under Section 55 of the Act. For the sake of reference Section 55 of the Act is quoted below:- “55. Police to take charge of articles seized and delivered.– An Officer-in-Charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this 14 Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the Officer-in-Charge of the police station.” Thus the prosecution has completely failed to prove through evidence that the seized articles and the samples were sealed as per the mandatory requirements under Section 55 of the Act. In this regard the learned Addl.P.P. referred to the seizure list (Ext-1) and argued that it is mentioned in the seizure list that the seized articles and the sample had been sealed by the informant and therefore, it was argued that this Court may take notice of the fact of sealing. But I fail to accept this submission of learned Addl.P.P. without there being any evidence in this regard. The factum of sealing cannot be taken as proved simply due to such assertion in the seizure list, but the prosecution has to prove it through independent evidence and the prosecution has miserably 15 failed in this regard. 14. Even the veracity of the prosecution story about the factum of recovery and preparation of seizure list at the P.O. has been assailed and it was submitted by the appellant’s counsel that the prosecution evidence is quite contrary in this regard. The informant (P.W.1) stated that the seizure list was prepared at the P.O. but the Magistrate (P.W.3), who had accompanied the raiding party stated in his evidence at para-5 that he had remained at the police station till the seizure list was prepared and the samples were taken from the seized Ganja. This evidence indicates that the seizure list was prepared at the police station. Thus, the credence of the prosecution story that it was prepared at the P.O. is deeply affected in an adverse manner. Besides this the two important seizure witnesses, P.Ws.4 & 5, who are also said to have signed the seizure list have not supported the prosecution story and they have deposed that any seizure was made in their presence and that their signature was forcibly obtained on blank paper. The evidence of these witnesses assumed significance in the 16 situation that the prosecution did not even chose to cross- examine these two witnesses to say that their statement is not correct. When the prosecution itself has chosen not to challenge such evidence of these witnesses, this Court is left with no option but to accept their evidence as credible and this goes to discredit the prosecution story about the recovery and preparation of seizure list as alleged. 15. Thus hearing and considering the evidence of witnesses and the materials as brought by the prosecution on record, I find that the prosecution has miserably failed to prove the story of recovery from the appellant. The mandatory requirement of the sealing of the recovered article by the officer recovering it and sealing of the samples by him and the officer in charge as provided under Section 55 of the Act has also not been proved. In such view of the matters, I find that the charge as leveled on the appellant has not been proved and the appellant deserves acquittal. Accordingly, the appellant is acquitted of the charge. The appeal is allowed. The appellant is in custody. She is ordered to 17 be released forthwith if not required to be detained in any other case. Patna High Court, Dated, the 15th April, 2010 N.A.F.R./Mkr. (C.M. Prasad, J.)