CRIMINAL APPEAL No.245 OF 2008 -------- Against the judgment and order dated 17.1.2008 and 22.1.2008 passed by Sri Chandra Shekhar Sharma, Additional Sessions Judge cum Special Judge, N.D.P.S. Act, Kishanganj in Special Case No. 15 of 2002 / Trial No. 11 of 2002 arising out of Kishanganj Unit Case no. 35/NDPS/2002 -------- 1. Ram Singh, son of Dhyan Singh, 2. Ashwani Kumar Gupta, son of Prakash Chandra Gupta, both residents of Bariyal, P.S. Narod Jaimal Singh, District – Gurudaspur (Punjab) ……….. Appellants Versus The State Of Bihar ……….. Respondent ---------- For the Appellants : Sarvsri Pankaj Kumar Sinha & Diwakar Sinha, Advocates For the Union : Sarvsri Md. Nadeem Seraj, CGC Shailesh Kumar, Satish Kumar Sinha, Advocates --------- 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 two appellants before us, were tried by the learned Additional Sessions Judge-cum-Special Judge, Kishanganj for the charge under sections 20(b) (ii) (c ) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act) in Special Case No. 15 of 2002 (Trial No. 11 of 2002) arising out of Kishanganj Unit Case no. 35/NDPS/2002 dated 6.8.2002. 2. The learned judge who passed the judgment of conviction against the two appellants on the 17th day of January, 2008 passed 2 sentences upon them on 22.1.2008 and directed each of the appellants to suffer rigorous imprisonment for fifteen years and also to pay a fine of Rupees one lac each and in default, to suffer further simple imprisonment for six months. 3. The case emanated from a petition of complaint which was filed by Shri P.C. Surin, (P.W. 1), who at the relevant time was posted as Inspector, Customs (Preventive), Kishanganj stating that during routine preventive checking on 6.8.2002, the team comprising of the complainant and other persons who are cited as witnesses found a tank lorry bearing registration number WB-03-2686 standing on the road near L.R.P. Chowk, Bahadurganj, Araria. The team went near the vehicle and found three persons sitting inside the lorry and on enquiry, each of them disclosed their identification along with their respective names and address. The complainant and his companions also disclosed their identifications along with the identification of the Superintendent, Customs and wanted to know about the nature of the goods which could be loaded in the lorry. It was stated by the occupants of the vehicle that it was empty but, as per the complainant, they felt some foul play as an unusual smell was coming out of the tank lorry and as such, asked the occupants to open the cap of the chamber. It was readily complied with and the complainant and others had felt smell of ganja coming out of its chamber and that further compounded the suspicion, on which, the Preventive Officers expressed their desire to check and make a search of the lorry thoroughly and as such gave options to the three occupants as if they so desired, the checking and 3 search may be conducted in presence of a magistrate. But, they declined and, therefore, the tank lorry was brought to the premises of Customs office, Kishanganj and was checked as such. During that search, it was revealed that a false chamber was attached to the body of the tank lorry. The same was broken and it was found that 25 packets of ganja were kept therein and those were seized and weighed. The total weight of the recovered ganja was 365 K.G. which was valued at Rs.18,25,000. The documents relating to the vehicle, like, the registration certificate, insurance certificate and driving licence, etc. were also seized in presence of the witnesses along with the tank lorry and recovered ganja. Thereafter, the complaint petition was filed. 4. It appears that on the basis of the complaint petition, the Special Judge, Purnea took cognizance of the offence and the case went to trial, during which the charges were framed against the two appellants, as stated above. 5. The defence of the appellants was that the case was completely false and they were never carrying the contraband ganja and had falsely been implicated. In fact, it was pleaded by the appellants that the vehicle did not contain in any of its parts any narcotic substance. 6. During trial of the case, eleven witnesses were examined. P.W. 1 Pramod Chandan Surin is the complainant of the case and he has supported his allegations by stating that the preventive team under the leadership of their Superintendent, Shri R.K. Mishra (P.W. 3), were on routine checking and during that course, they found the tank lorry standing on the road, which was to go to Araria. Three occupants were 4 questioned and sensing some foul play, the lorry was checked and, accordingly, 365 K.G. of ganja was recovered which was seized. P.W. 1 further stated that the confessional statements of the two appellants were also recorded by one Madan Poddar and the same were signed by the witnesses Madan Poddar and Shankar Rai. Likewise, their interrogation statement was also recorded in presence of the Superintendent (P.W. 3) and that was also written by Madan Poddar in presence of witness Shankar Rai. The accused persons were sent to custody. 7. What may appear from the evidence of P.W. 1 is that there is complete absence of evidence as to what happened of the seized ganja. There is no evidence also that the seized substance was sampled as per the provisions of NDPS Act after the same was delivered to the Officer Incharge of the nearest Police station as per the requirement of Sections 52-A and 55 of the NDPS Act. 8. P.W. 2 Rakesh Ranjan Sinha has given evidence on the same facts as have been stated by P.W. 1 that during the routine checking they happened to find the tank lorry bearing registration number WB- 03-2686 standing on Bahadurganj-Araria Road in which three persons were found sitting and on search of the vehicle in Customs office, Kishanganj, 25 packets ganja were recovered from a hidden chamber which weighed 365 Kgs. This witness has not tendered a single line of evidence as to what happened of the recovered ganja and whether any sampling was done as was required in law by any of the members of 5 the preventive team, least to talk of in presence of the officer incharge of the police station. 9. Other witnesses, like, P.W. 3 Ratan Kumar Mishra, the Superintendent of Customs and P.W. 4 Rabindra Nath Pathak have also given the same evidence, which have been tendered by P.Ws 1 and 2. Curiously enough, even the Head of the Department of Customs (Preventive), like, P.W. 3 appears maintaining a stony silence as to what happened of the seized ganja and how and by whom the samples were taken and were sealed or dispatched as per the provision of law. On the same line is the evidence of P.W. 5 Rameshwar Rai, P.W. 6 Vijay Kumar, P.W. 7 Ramjit Ram and P.W. 8 Ganesh Ram Bedia. P.W. 9 Devbrat Prasad has also deposed on the same facts and his evidence also is devoid of any information as regards the search of the seized article and the manner of sampling and sealing the same for dispatching it for chemical analysis to the Forensic Science Laboratory. P.W. 10 Ramesh Lal Das was the successor of P.W. 3 Ratan Kumar Mishra and he has tendered the attested copy of the chemical analyst report by stating that the original copy of the same was handed over to Shri B.B. Gosh, Special Public Prosecutor which had been received by his office and an attested copy was kept in the office for future reference. Because the original copy went missing, as such, he was producing the attested copy of the F.S.L. report which has been marked Ext. 6 in the case. While considering his evidence in cross examination, what we found was that the original copy of the F.S.L. report was given to Shri B.B. Ghosh prior to joining of the Superintendent, Customs 6 (Preventive), Kishanganj that P.W. 10 and further that the copy which was marked as Ext. 6, was the attested photo copy of photo copy of the the original, which was retained for reference purposes in his office. We are likely to make comments on the evidence of P.W. 10 a bit later. P.W. 11 Madan Prasad is the person who, as per the witnesses and as per P.W. 3, had taken the dictation of voluntary statement of the accused persons which have been marked Ext. 3 and 3/2. 10. After considering the above evidence, the learned trial judge passed the order of conviction and inflicted the sentences upon each of the two appellants, as we have pointed out at some early part of the present judgment. 11. Shri Pankaj Kumar Sinha, learned counsel for the appellants has not taken us to any other point than to the compliance to the provisions of the NDPS Act and specially of those provisions, which appear mandatory in nature. In this regard, it was pointed out that no witness, who appeared present throughout the entire proceedings of finding the lorry up to the search and recovery of the contraband article, has ever stated that the ganja which was seized, had been delivered to the officer incharge of the police station for its storage as per the provision of section 55 of the NDPS Act. It has further not been pointed out by any of the witnesses that any inventory was prepared after the recovery and seizure of the substance in the light of the provision of section 52-A of the NDPS Act and those were duly entered into a particular document or register and further that an application for certifying the correctness of the entries had been made to the magistrate and that the magistrate 7 had duly certified it as is required by the provision of section 52-A(2) of the NDPS Act. It was contended next that Ext. 6 could not be read in evidence inasmuch as P.W. 10, the witness who tendered the document in evidence, has himself admitted that the document was prepared from the photo copy of the original which was lost and that he had attested the same thereafter. It was contended that it was out and out an inadmissible document and, as such, there was a complete lack of evidence that the seized article was a narcotic substance. It was contended in the above connection that the seized article was sampled as per the provision of section 55 of NDPS Act and thereafter, was forwarded to the Forensic Science Laboratory also does not appear established by evidence. 12. Section 55 of the NDPS Act mandates that as soon as any article which is suspected to be a narcotic substance or drug is seized, it has to be put into the charge of the officer incharge of a police station and that police officer incharge shall allow the sampling of the seized article by the officer who had brought the substance or had accompanied the substance up to the police station for putting it into the charge of such an officer incharge. It is further directed by the provision that while sampling the article, the Officer Incharge of the police station has to put his own seal over the sampled article along with that of the officer who had been deputed for sampling the article. We do not have any evidence coming from any of the witnesses including P.W. 3, the Superintendent of Police who was heading the preventive team that the article was, after its seizure, made over to the Officer Incharge of the 8 police station in whose jurisdiction the seizure was made and that the said police officer was present and allowed the sample to be taken in his presence and in token thereof, he had put his own seal over the sampled article, which might be contained in any container. We do not have any evidence coming from any of the witnesses as to what happened of the article after it was recovered and seized. As per section 52-A of the NDPS Act, it has to be produced before the officer incharge of the police station who is required to prepare an inventory of such substance containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, place of origin and other particulars as the officer may consider relevant for the identification of the narcotic substance. In case, the above formalities have been fulfilled, then the officer incharge of the police station has to make an application to a magistrate for certifying the preparation of the inventory with above details and the magistrate shall, as may appear from section 55 of the NDPS Act, further certify the same. These are legal mechanism developed to check the tampering of any sort in the storage as also in sampling of the seized article. 13. The law is stringent as regards the punishment. The minimum punishment is ten years, which may extend to life in some cases and the fine, in most of the cases, could not be more than one lac rupees. Confessional statement before the police or confession of a co accused, if it has been reduced into writing, has been made admissible by raising 9 presumption of guilt against the accused, which presumption is required to be displaced by the accused. These are some of the legal impediments which have been created in spite of the normal principles of criminal jurisprudence being a contrary to them, considering that the offence which are defined and which are made punishable under the NDPS Act, are not only to destroy the fabric of society but, are also to take a heavy toll of our national economy. Thus, the legislation was attempting to device ways and means so as to tackling the menace of drug trafficking. But, when it comes to judging, the courts have also to balance the interest of justice and the national interest with the liberties of a person besides keeping in view that the check and balance which have been created by the provisions of the NDPS Act are strictly complied with. This is the reason that courts are very slow in acting on evidence, which indicate non compliance of the provisions of the aforesaid Act. Besides, if they find that there is any loopholes in compliance with the provision as rigors and strict as section 52-A or 55 of the NDPS Act, then it has always to extend the benefit of doubt to the accused. 14. Coming to the facts of the case, no seizurelist witness has come forward to say that they were associated with either the recovery of storage of the article. All witnesses are the departmental personnel, who were admittedly the members of the party except one who appears to be an advocate but who also appears being associated with the department, as per his own evidence, for preparation of documents or confessional statement of accused or their interrogatories. The witness 10 has himself admitted the above fact. Besides, there is no evidence as we have just pointed out as to what happened of the contraband article which was seized and further as to where they were kept. There is absolutely no evidence except that of P.W. 6 in paragraph 3 in which he has stated that there was a godown in the backyard of the office premises and the articles which were seized were simply placed there by putting the name of the person from whom they were seized. This is not the compliance to the provision of either section 52-A or 55 of the NDPS Act. Both the provisions require that the seized articles ought to be handed over to the Officer Incharge of the police station for the purpose of preparing the inventory with descriptions which are spoken of by section 52-A(2) of the NDPS Act. 15. There is a procedure also set down as to how the seized article has to be sealed. It has to be sealed by the officer who is deputed for the purpose. But it has always to be done in presence of the Officer Incharge of the police station in whose jurisdiction the occurrence had taken place or, in other words, the recoveries have been made. There is always to be a seal of the Officer Incharge on the sampled article. Here in the present case, there is a complete absence of any evidence that in fact any one from the Customs Department or of the Police Department had sampled or sealed any part of the recovered substance. 16. This brings us to consider the admissibility of Ext. 6. Learned counsel appearing on behalf of the Union of India took us through the provision of section 63 of the Evidence Act and wanted us to accept his contention that it could be a valid secondary evidence as it was a copy 11 of the original of the report. We considered the provision and while so considering, we simply found that any copy which could be admitted under section 63 of the Evidence Act has to be made from the original of the document or oral accounts of the contents of the documents or the preparation of the documents as to how it was prepared, shall have to be adduced in the language of section 63 as appears from sub-section (5) of Section 63 of the Evidence Act. 17. Here, in the present case, the officer (P.W. 10) who tendered Ext. 6, was not working as the Superintendent, Customs (Preventive), Kishanganj. He has himself stated that the document in its original was received by his office and the same was handed over to Shri Ghosh, Special Public Prosecutor, NDPS Cases. His evidence is that the original went missing. This always had to be evidence of Shri Ghosh if the prosecution wanted us to rely that claim of the prosecution. Shri Ghosh not being examined, we have extreme difficulty in accepting, firstly, that the original was lost and, secondly, that the evidence on loss of P.W. 10 could be admitted in evidence. No official record regarding the handing over of the document or its original being received by Shri Ghosh has also been produced in the trial court. What has further worsened the situation is that P.W. 10 admitted that a photo copy of the original was maintained in his office and another photo copy was prepared out of it and he attested the same. Attestation of a document could be acceptable when it is pointed out that it was done after comparing its contents with its original. That evidence not being available admittedly, the whole evidence of P.W. 10 appears to us of no 12 use. Thus, the evidence of the prosecution and the finding of the learned trial judge that the recovered substance was narcotic substance could not be acceptable to us. 18. In the light of the above discussions, what we find is that the prosecution had miserably failed in proving the charge against the appellants and the judgment of conviction and sentence passed against each of the appellants was not fit to be passed in the light of the evidence. The appeal is allowed. The judgment and order of conviction and sentence are set aside. The two appellants are in custody, they are directed to be released forthwith, if not wanted in any other case. (Mridula Mishra, J.) (Dharnidhar Jha, J.) Patna High Court, 1st October, 2010 AFR/Anil/