CRIMINAL APPEAL (SJ) No. 544 OF 2007 Arising out of order of conviction and sentence dated 30.04.2007 and 03.05.2007 respectively passed by Additional District & Sessions Judge, IXth, Patna, in connection with Special Case No. 13 of 2005. SANJEEV BARMAN, Son of Sri Bhavendra Nath Barman, Resident of Village and P.O. Diggal Tari, P.S. Dinhattaikooch Bihar (W.B.). …………Appellant Versus THE STATE OF BIHAR .………Opposite Party/Respondent For the appellant :- Mr. Dhirendra Kumar Sinha, Advo. For the Union of Indian :- Mr. Binay Kr. Pandey, C.G.C. * * * * * P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA * * * * * Akhilesh Chandra, J. The solitary appellant has preferred this appeal against his conviction under Section 20(b) of the Narcotic Drug Psychotropic Substance Act ( hereinafter referred to as N.D.P.S. Act) and sentence to undergo rigorous imprisonment for ten years and pay a fine of Rs. 1,00,000/- (One Lac), in default of payment of fine further to undergo rigorous imprisonment for one year awarded by IXth Additional District & Sessions Judge-cum-Special Judge, Patna in Special Case No. 13 of 2005 on 30th April, 2007 & 03rd May, 2007 respectively. 2. The case of the prosecution has reveal from Exhibit – 4, the complaint petition of Rakesh Ranjan Sinha (P.W. 1) the Intelligence Officer, D.R.I., Regional Unit, Patna 2 is that on getting one confidential information he along with officers and staff of D.R.I, Regional Unit, Patna and two independent witnesses (not examined) rushed to Patna Junction in the night of 13.03.2005 and on arrival of Train No. 2423 UP Gawhati -New Delhi Rajdhani Express at Platform No. 2 at about 12.10 hours entered into Bogie No. 15579, Coach No. AS – 7 (A.C. 3 Tier) and reached near Berth Nos. 21 - 23 and after initial enquiry searched five luggages (three suit-case and three rexin bags) of the occupants of Berth Nos. 21 and 22 i.e. Sanjeev Barman (appellant) and Md. Hisabuddin (absconding during trial), who were found traveling on the said two berths. The above luggages were found stored beneath the lower berth of the compartment in which Berth Nos. 21 - 23 falls and were also identified by the appellant and co-accused as their own. Altogether, eight packets of Ganja wrapped in coloured polythene and tied by jute string were recovered. Thereafter, due to security point the officers along with luggages and occupants rushed to D.R.I. office, Patna where search and seizure were initiated in presence of the apprehended persons. The gross weight of eight packets of Ganja was found 62.4 Kg. and net weight was ascertained 60 Kg. and valued about Rs. 1,20,000/- seized at 2.30 hours on 14.03.2005 at D.R.I. office, Patna under Section 43 of the (N.D.P.S. Act). The statements of the persons apprehended recorded under Section 67 of the (N.D.P.S. Act) and both have as said confessed their guilt and carrying Ganja to be delivered to one Raju, resident of East of 3 Kailash, New Delhi and the arrested persons were produced before the court on 15.03.2005 with seizure memo, original copy of statement, panchnama etc. On chemical examination of sample, it was established that the sample was of Ganja. After investigation charge-sheet was submitted cognizance was taken and trial commenced. After framing the charge against the appellant on 12.06.2006 for the offence under Sections 20 (a) of the (N.D.P.S. Act) but during arguments vide order dated 13.04.2007, the charge was corrected as to be under Section 20 (b) of the (N.D.P.S. Act) without hearing either of the side. 3. Prosecution has examined altogether four witnesses besides the following documentary evidence by way of Exhibits -: Exhibit – 1 : Statement of Sanjeev Barman. Exhibit – 2 : Panchnama. Exhibit – 3 : Seizure list. Exhibit – 4 : Complaint petition. Exhibit – 5 : Test memo. Exhibit – 6 : Certificate given by Sri P.C. Anal, J.M. 1st Class, Patna. Exhibit – 7 & 8 : Railway Ticket and Pan Card. Material Exhibit – A : Closed envelope. on consideration whereof the court below has found the appellant guilty and accordingly, he stands convicted for the sentence giving rise to the instant appeal. 4 4. While assailing the findings of the court below, learned counsel for the appellant has submitted that charge was amended without hearing and at no point of time it was explained. Whereas, if any amendment is made in the charge it must have been explained and opportunity should have been given to him. That apart, no seizure etc. was made in the train and another article were said to have brought to D.R. I. Office, Patna, where everything was manufactured. Nothing was recovered from the possession of the appellant and no mandatory provisions of law have also been fulfilled. On the other hand, learned Additional Public Prosecutor as well as learned counsel representing Union of India supports the findings of the court below. 5. Now, it is to be seen in this appeal whether prosecution has been able to substantiate the charge against the appellant beyond any shadow of reasonable doubt or findings of the court below needs any interference. 6. Before analyzing the evidence and materials available on record, I would like to first take up the point of amendment in charge. Admittedly, charge was framed and explained to the appellant on 12.06.2006 and it appears from the charge that all the ingredients of offence under Section 20 (b) of the (N.D.P.S. Act) was therein and which were explained, but inadvertently while mentioning the provision of 5 law instead of Section 20 (b) of the (N.D.P.S. Act), it was written as 20 (a) of the (N.D.P.S. Act) and this clerical error has been rectified subsequently by the trial court, of course, at the fag end and from the order it appears that no opportunity was given nor the same was again read over and explained to the accused. It is true that while making such correction even formal in nature, the trial court should have taken care and done so only after hearing learned counsels representing the parties. But since the correction is formal in nature in-toto no prejudice appears caused to the appellant, hence the trial cannot be held vitiated. 7. Out of four witnesses examined by the prosecution, Rakesh Ranjan Sinha (P.W. 1) was examined on 06th December, 2006 has come to say that on getting confidential information, he rushed to Patna Junction to attend 2423 UP Gawhati – New Delhi Express along with Dharmesh Kumar Srivastava (P.W. 2, Investigating Officer), Krisnanandan (P.W. 3, Hawaldar), Bhagwan Mahto (P.W. 4, Sepoy) and two independent witnesses, namely, Gautam Acharya and Raju Prasad (both not examined) and on arrival of the train entered into Bogie No. 15579 of AS – 7 of A.C. 3 Tier Coach and reached near Berth Nos. 21 – 23, inquired from the passengers sitting their and the occupants of Berth No. 21, the appellant and Berth No. 22, Hissabuddin (co-accused absconding), who produced tickets of Berth Nos. 21 – 23. 6 These two individuals said that against tickets of three only two are traveling and the third one did not turned up and these two have five luggages with them, three suit-case and two rexin bags kept beneath the lower berth, which was confirmed by other co-passengers. He further, intimated them that they have right to get them searched in presence of Magistrate or Gazetted Officer, but they did not avail the opportunity rather conceded to be searched by informant and his group. The appellant opened the suit-case and rexin bags, wherein Ganja kept in colour polythene bag was found so all get down from the train and were brought to D.R.I. Office, Patna where Ganja kept wrapped in eight packets weighted 60 Kg. was seized. Both persons confessed their guilt and their statement were recorded. The confessional statement which was scribed by Raju Prasad (not examined) is marked as Exhibit – 1, the panchnama prepared by Gautam Acharya (not examined) is marked as Exhibit – 2, Seizure list (Exhibit – 3) and thereafter, they were produced before the court and remanded to custody. Complaint petition of this witness is marked as Exhibit – 4. The chemical examination report received from Gazipur (U.P.) is marked as Exhibit – 5. The certification issued by Sri P.C. Anal, the then Judicial Magistrate, Patna is marked as Exhibit 6 and sample kept is marked as material Exhibit – A. The railway ticket and pan card of the appellant produced during interrogation is marked as Exhibit 7 – 8. From evidence of this witness nothing appears regarding weighing of all the eight 7 packets separately or even taking up samples from such packets. It is true that entire paper work and weighing etc. was done in the office of this witness but that cannot be fatal for prosecution, since, it was not possible to complete all such formalities in the train or the platform and for the security reason it was rightly done at the office, a safe place. But at the same time, non-weighing of all the packets individually and not taking samples from each of them appears fatal for the prosecution. 8. Similar is the position of P.W. 2 Dharmesh Kumar Srivastava, another member of the raiding party and Investigating Officer of the case, who in paragraph no. 5 of his examination-in-chief though said to have preparing seizure memo and weighing of the seized articles but stated about accumulate weight 60 kg. and also said that sample was taken and sealed subsequently transmitted to Gazipur (U.P.), but in his very examination-in-chief itself he is silent about individual weighing of packets or taking sample from each of such packets. In his cross-examination, at paragraph no. 8, he says that the luggages were found beneath Berth No. 21. Undisputedly, it was 3 Tier A.C. Coach and as per constitution of berths in 3 Tier Coaches in each compartment of a bogie there are eight berths, first six berths were in cabin side i.e. lower, middle and upper opposite to each other and two berths known as side berth after passage and in this way Berth Nos. 8 21, 22 & 23 situate in third compartment of the bogie from beginning and Berth Nos. 21 - 22 shall respectively be middle and upper berth in cabin side, whereas, Berth No. 23 must be side lower berth and the luggages if found beneath Berth No. 21 must be kept on Berth No. 20, this is not the prosecution case. As in view of paragraph no. 11 of this witness, there was someone on Berth No. 20, but neither he was inquired into nor there is any details regarding his identity. In paragraph no. 10, this witness speaks about composite weighing of seized articles and again taking of sample, but he is silent about such taking from each or which of the packets. 9. P.W. 3, Krishnanandan (Havildar) member of raiding party speaks about search in particular compartment and recovery of article but he also is not in a position to be specific about the details as discussed above. P.W. 4, Bhagwan Mahto (Sepoy) coming to support the prosecution case but likewise P.W. 3 he is also not specific. 10. The two material prosecution witness nos. 1 and 2 also failed to examine details and availability of third person for whom another berth was taken. Only because as stated by these witnesses the two apprehended persons have said that their companion did not join them must have been tested to rule out presence/involvement of another. The possible available evidence by way of statement of T.T.I. and reservation chart etc. lying with him are not checked at any 9 point of time this further not only weakens the prosecution case, but creates doubt also. 11. The prosecution also has not examined the two independent witnesses, namely, Gautam Acharya and Raju Prasad, who were members of the raiding party and author/scribe of some documents available on record. There is no explanation offered by the prosecution for non-examination of these two witnesses said to have been independent. In absence, thereof, it would be difficult to accept the prosecution version. That apart as stated above, the prosecution has not been able to be specific about the weights of eight packets so recovered, proper taking of samples from each of the packets and in absence of all such mandatory requirements, it is not only difficult but impossible to uphold conviction of the appellant for search and stringent offence. 12. On basis of the discussions made above, it is crystal clear that prosecution has not been able to establish the charge against the appellant, hence order of his conviction and sentence awarded by the court below be set-aside and appeal is allowed. He is at once order to be released from custody, if not required to be detained in any other case. Patna High Court Date: The 15th March, 2011 Praveen/- N.A.F.R. ( Akhilesh Chandra, J.)