CRIMINAL APPEAL No.663 OF 2007 (DB) Against the judgment of conviction and order of sentence dated 20.4.2007 passed in Sessions Trial No. 35 of 2002/21 of 2007 by Sri Birendra Kumar Singh, Additional Sessions Judge, F.T.C. No. V, Bettiah, West Champaran. ******** 1. MAHENDRA SINGH SON OF BIRBAL SINGH RESIDENT OF VILLAGE- SONASAR, P.S. & DISTRICT- JHUNJHANU (RAJASTHAN) 2. GUDDU NAI SON OF MURARILAL NAI RESIDENT OF VILLAGE- CHHAWSHARI, P.S.- GUDDAGODJI, DISTRICT- JHUNJHANU (RAJASTHAN) ………………………… APPELLANTS Versus THE UNION OF INDIA ………………………….RESPONDENT *********** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD S. K. Sharma & Gopal Prasad, JJ. The appellants have preferred this appeal against the judgment of conviction and order of sentence dated 20.4.2007 passed in Sessions Trial No. 35 of 2001/21 of 2007 by the learned Additional Sessions Judge, F.T.C. No. V, Bettiah, West Champaran by which they have been convicted under Sections 20 (b) (ii) and 23 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the Act) and have been sentenced to undergo rigorous imprisonment for 15 years each and further fine of Rs. 1,50,000/- each was imposed for both the offences and in default of payment of fine they have to go further rigorous imprisonment for two years separately for both the offences and it was ordered that 2 both the sentences shall run concurrently. 2. The prosecution case, as lodged by the complainant Inspector Dular Kendulna, Customs (Prev) Circle, Bettiah is that on 4.7.2002 the complainant received information from coded informer regarding movement of Nepali Ganja on Truck No. RJ 19G-1311 and so a team was constituted for raiding and rushed towards Bettiah-Chapra Road about 01.00 hours and a truck was apprehended at 4.30 hours and from the truck 410 quintals of Ganja was recovered concealed in false chamber in the floor of the truck. The Khalasi and Driver of the said truck were apprehended. They disclosed that the Ganja belongs to the owner of the truck namely, Sultan Chaudhary. The further case is that the packets of Ganja recovered from the false chamber of the truck was taken out and weighed in presence of two independent witnesses which is about 410 Kg. On the aforesaid prosecution report of the Inspector, Customs, the case was instituted and the cognizance was taken under Sections 20 and 23 of the Act and subsequently the charges were framed for offences under Sections 20 (b) (ii) and 23 of the Act for recovery of 410 Kg. of Ganaj from the possession of the appellants. 3. However, during trial 10 witnesses were examined. They are Bholanath Upadhaya, Hawildar (PW 1), Rambabu Ram, Constable (PW 2), Dinanath Kumar, 3 Constable (PW 3), Jagdamba Mishra, Driver of Custom Department (PW 4), Umashankar Sharma, Custom Superintendent (PW 5), Kali Prasad Raut, Constable (PW 6), Dular Kendulna, Complainant the Inspector (PW 7), Sanjay Kumar (PW 8), Yadunandan Prasad, Constable (PW 9) and Manoj Prasad (PW 10). The documentary evidences adduced by the prosecution are signatures on statements ( Exts. 1 to 1/1), seizure list (Ext. 2), Panchnama (Ext 3), Confessional statement of appellant Mahendra Singh (Ext. 4), Confessional statement of appellant Guddu Nai (Ext. 4/A), Chemical Examination Report of Ganja (Ext.5), Prosecution Report (Ext. 6), Signature on the Seizure list (Ext. 7), Signature on Panchnama (Ext. 7/A), Signature of appellant Mahendra Singh on confessional statement (Ext. 7/B), signature of appellant Guddu Nai on confessional statement (Ext. 7/c) and signature of appellant Gudu Nai on introductory (Ext. 7/d). 4. After considering the oral and documentary evidences and after considering the submissions of the parties the learned trial court convicted and sentenced the appellants as stated at the outset. 5. Learned counsel for the appellants contended that though there is allegation that the truck was coming from Nepal but the evidence of some of the witnesses are contradictory as they have stated that the truck was not coming from Nepal, it was coming from other side. Learned 4 counsel for the appellant, however, submitted that there is contradiction between the evidence of the witnesses regarding the time of the occurrence and regarding the recovery of the seized article as some has stated that seizure was made from the chamber made in the floor of the truck and some has stated that the chamber was at the hood of the truck. There is also contradiction in other aspects about the place of search and seizure and the place of weighing the seized article and hence it has been contended that the witnesses are varying on the material aspects. The most important aspect of the case that though the search and seizure has been alleged to have been made but there is no evidence at all whether the said seized articles were sealed or not or whether the sample was taken were ever sealed. It has further been contended that there is allegation that the narcotics seized were in several packets but there is no mentioning that what was the number of those packets and what was the weight of each of the packets and it has also not been mentioned that whether the sample was taken from each of the packets. However, the evidence suggests that the sample was taken from one of the packets but there is no mentioning that the seized article was ever sealed or sample was ever sealed or where the seized articles were kept and when it was sent for chemical examination to the Chemical Laboratory and hence contended that these are the most important aspects of the matter to 5 establish that the seized articles were Ganja and the seized article was sent for chemical analysis and the chemical report is of the seized article. If the prosecution has not been able to establish these facts and the link is missing then the appellants are entitled to get the benefit of doubt as the prosecution has not been able to prove the charges beyond all reasonable doubt. 6. Learned counsel for the State contended that the prosecution has been able to prove the charges beyond all reasonable doubts. 7. Having regard to the submission of the parties the question for consideration is whether the prosecution has been able to prove its charges levelled against the appellants beyond all reasonable doubts or not. 8. We proceed to consider the evidence in the light of the submission of the parties. The prosecution case as in the complaint filed by the informant/complainant is that on secret information the complainant/informant proceeded at 1.00 AM along with the raiding party and at 4.30 hours a truck was apprehended and from the concealed chamber in the floor of the truck 410 Kg. of Ganja was recovered. The said Ganja was seized and weighed on the spot itself. However, PW 1 in his evidence in paragraph 1 itself has stated that the Ganja was recovered from the Hood of the truck i.e. from the false chamber at the hood of the truck. He has further stated 6 that he proceeded along with the raiding party at about 7-8 AM in the morning however, these two evidences are contradictory to the prosecution case. 9. PW 2 has also stated that the Ganja was recovered from the false chamber from the hood of the truck and this witness has given contradictory statement to the prosecution case. He has further stated that he left Bettiah in the day time and returned in the day time itself. In paragraph 7 of the judgment which is again a contradictory statement to the prosecution case where it has been stated that they proceeded at one hour and the recovery was made at 4.30 hours. 10. PW 3 again has stated in paragraph 3 of his cross examination that he proceeded at 2.30 P.M. in the day for raiding and at 7 P.M. returned with the raiding party and again this witness falsified and has given contradictory statement to the prosecution case. In paragraph 9 also this witness has stated that when the truck was apprehended it was evening. However, he has again stated that the Ganja was taken out which was in packets but he was unable to disclose the number of packets. He is unable to say even what was the weight of each packets though the prosecution case is that the Ganja was weighed at the place of occurrence itself. 11. PW 4 though has supported the prosecution case but he has stated that truck was brought to the Bettiah 7 custom office and there the false chamber was broken and packets of Ganja was recovered and it was weighed at the custom office which is a contradictory statement to the prosecution case and the evidence of the PW 7 the informant who has stated that the Ganja was recovered at the place of occurrence and it was seized and weighed at the place of occurrence. 12. PW 5 has stated that two sample was taken containing 50 grams each whereas pw 7 has stated that sample was taken each containing 15-20 grams and report of the Forensic Science Laboratory mentions that sample received was 2 grams and hence a doubt may have been raised that whether the sample which was examined was sent by the prosecution because there is variation in the weight of the sample. There is no evidence at all in the entire evidence that the seized Ganja was ever sealed or sent to the Forensic Science Laboratory. 13. PW 6 has stated that he cannot say the boundary of the place of occurrence. 14. PW 10 has proved his thumb impression upon the seized articles and has stated that the confessional statement of the accused persons were not taken before him. He is a seizure list witness but has not supported the seizure. 15. PW 9 has come to say that the Ganja was weighed at the custom office and it was weighed up to six and 8 seven times and he was a casual labourer in the custom office. 16. Hence taking into consideration the entire evidence, the submission that the witnesses are at variance regarding the time of occurrence, regarding the recovery of the Ganja from the truck as some has stated that it was from concealed chamber on the floor of the truck and some has stated that it was recovered from the concealed chamber on the hood of the truck, some has stated that the recovery was made in the day time, some has stated that the recovery was made in the night and some has stated that it was in the evening, there is no evidence regarding sealing of the seized article. There is no evidence at all that the sample was taken from each of the packets and there is no mention about the number of packets though in the complaint it has specifically mentioned that the Ganja seized were in several packets but neither the weight of each packet was mentioned nor it has been mentioned that the sample was taken from each of the packets or whether sample taken from the each packets were mixed together in heterogeneous mixture and then sample was taken. There is no evidence regarding the taking of the sample from each packet and regarding sealing of the sample. There is no evidence at all about the sealing of the seized articles or the sample. However, under these facts the sealing of the seized article are the most important aspect so that the 9 possibility of any interpolation can be ruled out. And further there is no evidence that when the Ganja was seized at the place of occurrence and when it was sealed and sample was sent to the chemical examination laboratory to rule out the possibility of mistaken proof of the seized article and further one of the witness has stated that the sample was in packets containing about 50 grams and the PW 7 the informant has stated that the sample taken was of 15-20 grams whereas the Chemical report received mentions that it received a sealed sample containing 2 grams and hence it cast serious doubt that the chemical report is with regard to the sample which was sent by the prosecution when there is difference of weight to large extent and hence taking into consideration the entire facts and circumstances that there is variation in material parts regarding the time of occurrence, regarding place from which the Ganja was recovered. In the evidence of the witnesses the prosecution has been failed to prove that the seized Ganja was sealed and further it creates doubt that whether the report received for the sample containing only was of 2 grams whereas in evidence it has come that sample sealed was of 50 grams or 15-20 grams also cast a doubt that whether the report is with regard to the articles seized and hence in the facts and circumstances the appellants are entitled to get the benefit of doubt and hence we are of the considered opinion that the prosecution has not been able to 10 prove its charge levelled against the appellants beyond all reasonable doubts. 17. In the result this appeal is allowed and the judgment of conviction and order of sentence as stated at the out set against the appellants is set aside. Both the appellants are acquitted of the charges. The appellants are in custody, they are directed to be released forthwith if not wanted in any other case. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.) Patna High Court, Patna Dated 14th May, 2010 avin/N.A.F.R.