1 Criminal Appeal (SJ) No.124 OF 2009 - - - - Against the judgment of conviction dated 18.12.2008 and order of sentence dated 20.12.2008 passed by Ist Additional Sessions Judge, Motihari, East Champaran in N.D.P.S.Case No. 92 of 2006 - - - - HARIHAR PRASAD Son of late Raghunath Sah, resident of Vilalge Nakardei, P.S. Nakardei(Adapur), District East Champaran ( Motihari) … … Appellant Versus STATE OF BIHAR … … Respondent For the appellant: Shri Farooque Ahmad Khan,Adv. Shri Md. Shahnawaz Ali, Adv. M/s Avnita For the State: Shri Sarvdeo Singh With CR. APP (SJ) No.202 of 2009 DASAI MIAN ANSARI @ DASAI MIAN son of Mahmuddin Mian, resident of Village Barainia, P.S. Kalaiya, District Baran, Nepal … … … Appellant Versus THE UNION OF INDIA THRU.INTELLIGENCE Officer, Narcotics Control Bereau, Varanasi … … Respondent For the appellant: Shri Farooque Ahmad Khan,Adv. Shri Md. Shahnawaz Ali, Adv. M/s Avnita For the State: Shri Sarvdeo Singh,CGC With CR. APP (SJ) No.370 of 2009 RAMCHANDRA DUVEY son of late Rameshwar Dayal, resident of Village 128/12,Hemant Kumar Srivastava Block Kidwai Nagar, P.S. Kidwai Nagar, Kanpur, U.P. … … Appellant Versus THE UNION OF INDIA … … Respondent. For the appellant Mrs. Rina Sinha, A.C. For the respondent: Shri Sarvadeo Singh, CGC. P R E S E N T THE HON'BLE Shri JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha J.- The three appeals are directed against the judgment of conviction and order of sentence 2 dated 18.12.2008 and 20.12.2008, respectively, passed by the learned Ist Additional Sessions Judge-cum-Special Judge, Motihari, East Champaran in N.D.P.S. Case No. 92 of 206. The three appellants, one each in the three appeals, were charged of committing the offences under Sections 20,23,27A and 29 of the Narcotic Drugs and Psychotropic Substances Act (‘the Act’ for short) and by the impugned judgment were found guilty of committing the offences. After hearing the appellants under Section 235 Cr. P.C., the learned Judge directed each of the three appellants to suffer rigorous imprisonment for ten years on each of the four counts as also to pay a fine of rupees one lac each. In default of payment of fine, each of the appellants was directed to suffer rigorous imprisonment for further period of two years on each of the four counts. However, the sentences were directed to run concurrently. 2. The prosecution case is contained in the complaint petition which has not been marked exhibit, though the learned Judge has unnecessarily gone over to mark the signatures of the complainant over different pages of it. It was stated that a secret and reliable information was received on 14.9.2006 that huge quantity of charas 3 was likely to pass through Raxaul Adapur Road, within two-three days. The complainant reduced the above information into writing and informed his Superior Officers and thereafter formed a team by requisitioning necessary security forces from Seema Suraksha Bal(SSB). The team was put on surveillance near the area through which the consignment was expected to pass. 3. On 21.9.2006 the complainant received a definite information that a deal on trafficking of charas was likely to be struck at a particular place amidst the ruins of a building on the above said road and, accordingly, the team comprised by the complainant and others reached there. They took with them the two persons of the locality, considering that the place where the transaction was to take place was secluded, for being associated with the search and seizure, if any. It is stated that the informer of the NCB team informed that transaction was taking place. The complainant found some persons sitting there over four plastic bags in the deserted ruins of a house or any construction. The team members moved on to conduct the raid, but some persons from the traffickers’ side opened fire as a result of which constable Guleshwar Hazarika was hit by a bullet. 4 In spite of that the spot was raided and four plastic bags containing suspected narcotic drugs were recovered. The complainant stated that by experience he and others found that the contents of the bags was charas and the three persons were captured who were sitting over the bags. Those three persons were the appellants. On being question, the appellants confirmed that the contents of the bags were charas and, accordingly, the same was seized. The injured constable Guleshwar Hazarika was shifted to Dunkan Hospital, Raxaul for first aid and as per the advice of the Doctor of that hospital, he was referred to the Patna Medical College Hospital, Patna. 4. The members of the team along with the seized charas and the three appellants along with two public witnesses came to Hotel Kaweri, Raxaul, and completed the formalities of seizure. It was found that each of the four bags were containing 52,52,54 and 55 number of brick shaped charas, total 213 in number, and the total weight of the seized charas was 80 KGs. A little quantity of charas from each of 213 slabs was taken and mixed up together homogeneously and two samples of 24 grams each were kept in separate polythene bags and were further kept in two separate paper 5 envelopes which were sealed and marked S/1 and S/2 and the remaining material was kept in two bags each containing 40 K.Gs. which were further wrapped and sealed in clothes and they were marked P1 and P2. The departmental seal no.22 was affixed on each of the bags and samples. The signatures of the witnesses and Officers were obtained on the packets. The seal which was put on the packets and bags was also put on the left side of the recovery memo Ext.1. Voluntary statements of three appellants were recovered which have been marked Ext. 2,2/1 and 2/2. Thereafter the seized charas and arrested persons were produced before the court for remand. 5. The sample S/1 was forwarded to the Government Opium and Alkaloid Works, Ghazipur(U.P.) by registered Insurance Parcel along with its memo and the same was confirmed containing charas(cannabis).Sample No.2 was also sent to CRCL, New Delhi with due direction of the Special Judge, Motihari, and that was also indicative of the fact that it was containing 1.02 percentage of THC the basic organic compound of charas. As a result of all these reports and statements, the complaint petition was, 6 ultimately, filed which went into trial, resulting in the impugned judgment. 6. During the course of trial, three witnesses were examined and a huge number of documents were produced in support of the prosecution case. P.W. 1 Jitendra Sinha was the Inspector in the Narcotic Control Bureau, Varanasi and he has supported the contents of the complaint petition and, thus, the evidence of P.W. 2 Netra Singh Bistha who had filed the complaint under his signature. The two witnesses have stated that on receiving the information on 14.9.2006 about the trafficking of charas into India through Raxaul- Adapur Road, the preventive team was constituted in which the Seema Suraksha Bal personnel were also requisitioned and, accordingly, on 21.9.2006 the appellants were found sitting over the bags of charas containing eighty K.Gs. of the contraband substance in the form of 213 slabs. The charas was seized and as stated in the petition of complaint and supported by the evidence of two witnesses, the same was transmitted to the Government Opium and Alkaloid Works, Ghazipur (U.P).) as also to Central Revenues Control Laboratory, Delhi by putting a particular seal which appears on the test memo. After seizure of 7 the substance, seizure-cum-recovery memo was prepared in presence of the witnesses and the same was signed by the three appellants. The Recovery memo has been marked Ext.1 in the case. The witnesses have stated that the three arrested appellants made their confessional statement and the same were recorded by Manoj Kumar and those are appearing on the record in the form of Ext.2 series. On account of the arrest of the three appellants, arrest memo was also prepared and that was also brought on record in the forms of Exts.4 to 4/2 and the test memo which is attached to the analysis report submitted by the Central Revenues Control Laboratory, Ext.9, indicates that the seal which was put on the sampled article was duly appearing on the memo as stated in the complaint petition. Not only that, what appears further is that the services of a Judicial Magistrate was requisitioned as per the provision of Section 52A of the Act so as to certifying the storage and inventory in that behalf as made mandatory under Section 52A (1) of the Act and the report in that behalf has been marked Ext.10 as the primary evidence of the certification showing that the seized article was properly secured so as to eradicating any chance of pilferage or 8 substitution after being properly sealed as is required by the provision of Section 52A(1) of the Act. The Magistrate has also certified the destruction of the quantity of charas which was stored in the godown of the Narcotic Control Bureau, Motihari, and that destruction certification of the Magistrate has been marked Ext. 11. 7. The report on certification of storage, inventory and destruction, i.e., Exts. 10 and 11 were produced by P,.W. 3. This witness has stated nothing except the above. 8. It was contended by Shri Farooque Ahmad Khan, learned counsel for the appellants that the Government Opium and Alkaloid Works, Gaghizipur, was reporting after analyzing the sampled charas that it was charas within the meaning of the term under N.D.P.S. Act whereas the report submitted by the Assistant Chemical Examiner, Central revenues Control Laboratory was simply noting down that the contents of the substance was 1.02 per cent as regards the trace of charas. 9. On perusal of the report Ext.9 which was submitted by the CRCL what this Court finds is that the same seal which was put on the envelope which was transmitted to that Laboratory appears 9 found by that particular Laboratory. Likewise, the Government Opium and Alkaloid Works, Ghazipur had also found the slabs intact on the containers which were envelopes containing samples which was received from the Narcotic Control Bureau, Varanasi. As regards the contention of tracing the charas in 1.02 percentage in the sampled article, the same appears not of much importance as the Laboratory, CRCL, was not stating that the sample was not containing anything other than charas. The report which was in the form of Ext.8 and which was the chemical analysis report submitted by another Laboratory, that is, Government Opium and Alkaloid Works, Ghazipur was, thin, not being contradicted. Thus, what is found is that the recovery and seizure of slabs of charas from the possession of the three appellants are properly proved. It is also established that sampled article was found to be charas on chemical analysis. Possession of the drug has been established not only by the evidence of the two witnesses but also by the connected documents, like, the interrogatory statements, seizure and arrest memo. 10. It was contended by Shir Khan that the provision of Section 50 of the Act was required to 10 be complied with. I simply want to point out that when the recovery is made after search of a person then only the provision of Section 50 is required to be complied with. But, when it is recovered from any luggage, bag, etc., then in that case the same is not covered by the provision of Section 50 of the Act and, as such, there could not be any compliance of that particular provision of the Act.( Please see AIR 2000 S.C.402 Kalerma Tumba Vs. State of Maharashtra and another, A.I.R. 2005 S.C.2265 State of Himachal Pradesh Vs. Pawan Kumar). 11. On consideration of the evidence adduced and brought on the record of the trial court, I find that the judgment of conviction in respect of the three appellants was properly passed and the sentences were also properly inflicted. 12. In the result, I do not find any merit in three appeals and the same are hereby dismissed. ( Dharnidhar Jha, J.) Patna High Court The 21st June, 2011 Kanth/A.F.R.