1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Criminal Appeal (SJ) No.339 of 2010 - - - - Against the judgment of conviction and order of sentence dated 15.12.2009 and 21.12.2009, respectively, passed by Additional Sessions Judge 5th, Muzaffarpur, in D.R.I. Case No. 3 of 2002 under Section 20 read with Section 8 of the N.D.P.S.Act. ===================================================== Chhathu Sah, son of late Asarfi Sah, resident of Village Ganj Bazar, P.S. Minapur, District Muzaffarpur .... .... Appellant Versus The State Of Bihar .... .... Respondent ===================================================== Appearance : For the Appellant : Shri Ajay Kumar Singh, Advocate Shri Raj Bans Dubey, Advocate For the Respondent : Shri Binay Kumar Pandey, C.G.C. ===================================================== CORAM: HONOURABLE SHRI. JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - The solitary appellant Chhathu Sah was convicted for committing offence under Section 20 read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act( for short ‘the Act’) by the learned Additional Sessions Judge- 5th, Muzaffarpur, in D.R.I. Case No. 3 of 2002, by judgment dated 15.12.2009. By order of sentence dated 21.12.2009 he was directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs. 1,00,000/-, else, to serve out rigorous imprisonment for one more year. The judgment of conviction and order of sentence are being impugned herein. 2. The case was instituted on the petition of complaint filed by the Intelligence Officer, Narcotic Control Bureau,Varanashi, namely, Kaushal Kant Mishra, P.W. 1, in which he stated that he received a secret 2 information that a person of medium height, average built, wearing a shirt and loongi was carrying ganja in a jhola. On the basis of the information he along with Shri R.K.Srivastava( P.W. 5), Rakesh Kumar (P.W.2) and all Intelligence Officers of Directorate of Revenue Intelligence proceeded for Muzaffarpur railway station. The R.P.F., Muzaffarpur, was requested to lend assistance and the complainant started search of that person. When the complainant along with others reached platform no. 3/4 of Muzaffarpur Railway station, he found a man of above description sitting at the platform along with a Jhola in a suspicious condition. The complainant stated that he and his other companions kept surveillance upon him and after reaching near him apprised him of the purpose for which the complainant had come and further stated that they wanted to search him and his Jhola. 3. It was stated that people started gathering and two passengers standing at the platform were requested to associate themselves with the search of the person of the appellant and they readily agreed and, accordingly, in presence of Anil Kumar ( not examined) and Brajbhusan Kumar( P.W.8) the appellant was searched. Before being searched, it was alleged, the complainant gave him an option of being searched either before a Gazetted Officer or before a Magistrate but he declined in writing and offered to be searched by the complainant himself and on search of his Jhola four wrapped polythene packets were recovered, each of which was containing ganja total weight whereof was 21.200 kilo- grams. 4. Samples were drawn and the same were sent for examination by the chemical examiner. The appellant was arrested and he also made 3 voluntary statement and chemical analysis report submitted by CRCL, New Delhi, indicated that the seized article was Ganja. 5. The appellant was arrested and produced before the court along with the seizure memo so as to getting the appellant remanded to custody, it appears that a Magistrate was got deputed to certify the storage of 21.200 Grams of Ganja in the godown of the Customs Department and further that the seized article was also ordered to be destroyed by the members of the committee constituted in that behalf. 6. While being taken through the evidence, I found that the learned trial Judge adopted thoroughly a new proceeding for trying the accused as may appear from the evidence of P.W. 1 the complainant who was examined in chief and was cross- examined after framing of the charge. The procedure was wrong inasmuch as the Special Court is the court of Sessions as per the provision of Section 36-C of the .Act and the person conducting a prosecution before a Special Court, has to be deemed to be a Public Prosecutor. Not only that, the same provision of Section 36-C directs that the provision of Cr. P.C. shall apply to the proceedings before the Special Court and in that view, the procedure to be followed by the trial Judge shall be under Chapter XVIII of the Cr. P.C. which relates to trials by the court of Session. The procedure which was adopted by the learned Judge for recording the evidence of P.W. 1 was that of a warrant trial cases and, as such, the learned trial Judge was not proceeding properly as regards the trial of the case. At any rate, the evidence could not be said to be admissible. However considering that the appellant is in custody for over nine years, I do not think it proper that I should remit the case back for retrial because the direction to the appellant was to suffer 4 rigorous imprisonment for ten years and if the case is remitted back for retrial, it will be a great hardship for the appellant. I, as such, consider it proper to decide the appeal on merit. 7. On consideration of the provisions of the Narcotic Drugs and Psychotropic Substances Act right from 52 what may appear is that the legislature has created dual provisions for enquiry/investigation of a case. If an Officer other than that of the police department was to hold an enquiry or was to search a person or premises after having received an information or having formed a suspicion that a person may be in possession of a narcotic substance or the premises, building, etc. may be storing some narcotic substance, then the provision appears under Section 52 of the Act. In case of an accused being arrested, he has immediately to be produced before a Magistrate and in case of any narcotic substance or drug being recovered from any building, vessels, vehicles, etc. it is required by law that the seized article or substance be immediately transferred into the custody of the Officer-in-charge of the Police Station authorized as such by virtue of Section 53 of the Act. As soon as the substance/drug is transferred into the custody of the Officer-in-charge of the Police Station as per provision of Section 53 of the Act, then it has to be kept at a particular place, notified as proper place of storage of such substance or drug by the State Government or Central Government by notification published in the Official Gazette in that behalf and the description of the article or drug has to be entered into the relevant register after preparing inventory of the same. The Officer, thereafter, has to obtain the deputation of a Judicial Magistrate for seeking certification of the storage and making of the inventory both by putting down all details 5 of the seized substance or article and the same has to be certified by the Magistrate. Not only that, Section 52-A(2) of the Act further indicates that the Magistrate has to remain present at the time of taking photograph of the seized substance or drug as also at the time when representative samples have to be drawn. The Magistrate has to certify that the photographs were taken and samples were drawn in his presence. Not only that, the Magistrate has to prepare a report of all the acts which are directed to be done or performed by provision of Section 52-A (2)(b) of the Act by the Officer-in-charge or by him and as may appear from Section 52(4) of the Act, the report has to be treated as primary evidence and thus the rules of Evidence Act regarding admission of the document or report prepared by the Officer is not to be followed. The reason, to me, appears very clear. The Acts of the Magistrate being statutory and judicial acts performed in pursuance to the direction of law which is contained in Section 52-A of the Act, the same are admissible as records of such acts performed by the public servant, like, a Judicial Magistrate which has been made under Section 52-A(4) of the Act and Section 35 of the Evidence Act. As such, I have in some recent decisions indicated that as soon as the directions were clearly issued by the legislature as to how the provisions of Section 52-A of the Act have to be complied with and as soon as the legislature was directing the Magistrate to prepare a report of compliance of every step or stage of Section 52_A of the Act, the law was making it mandatory to be complied with and if there was any thing to indicate that there was non-compliance of any of the parts of the provision of Section 52-A of the Act, the case has to fail on account of a suspicion being created on account of the non-compliance of the provision. A 6 presumption may arise that there may be a chance of either the seized substance or drug being replaced or being adulterated by some substituted substance which may disprove the charge framed against an accused. 8. As regards the investigation of a case on account of the search and seizure of any narcotic substance or drug on the personal search of an accused or search of a building, receptacle, etc, by any Police Officer the appropriate provision under which such a public Officer has to act is that under Section 55 of the Act . That particular provision also requires the custody of seized narcotic drug/substance to be transferred into the custody of the Officer-in-charge of the Police Station immediately in whose jurisdiction the offence appears committed. Such substance/drug has to be seized by properly sealing it and by putting the seals of the Officer seizing the same and the Officer-in-charge of the Police Station. The Officer-in-charge is required to allow the Officer seizing the drug/substance to take out the sample and to seal it, but both the officer and the Officer-in-charge have to put their individual seals over the packet containing the sampled article, before the same is forwarded to the Chemical Analyst for examination and report. 9. Here, in the present case, the witnesses have stated that the appellant was carrying a Jhola from which 21.2 K.gs. of Ganja was recovered which was kept in four packets. The witnesses have stated that samples were drawn out of the seized substance and the same were sent to the Chemical Examiner of CRCL, New Delhi, which submitted a report which has been marked Ext.3. But, there is no report in spite of there being report of certification by Shri R.J. Pal, Judicial Magistrate, Muzaffapur, on 1.12.2003 that he found 21.2 K.Gs. of 7 Ganja which was seized in connection with the present offence stored in the Store of Customs Division, Muzaffarpur, that the representative samples were drawn in his presence by any particular Officer of the department. The drawl of the samples appears from the same report Ext.3 on 19.3.2003 and this report was signed by Shri K.K. Mishra but again there is no mention anywhere in Ext.3 that the samples were drawn in presence of Shri R.J. Pal, Judicial Magistrate, or any other Officer as provided under Section 52-A(2) of the Act. Thus, it could not be said with certainty that the samples were really drawn out of the same seized substance which were forwarded to the laboratory for chemical analysis. Simultaneously, the other inference which may arise out of the evidence could be that there might be a chance that the substance which had been seized allegedly from Jhola of the appellant was not sampled as there is no certification by the Judicial Magistrate to that effect and some other substance in its place had been transmitted to the Laboratory for chemical analysis. If this inference be reasonably drawn on account of non-compliance of Section 52-A of the Act, then it could never be safe to uphold the conviction of the appellant. 10. I was noting down at some earlier part of the present judgment that the witnesses stated that when they went to platform no.3/4 of Muzaffarpur railway Station they found a man sitting on the Bench and they stated to him that they had to search him and, accordingly, gave him an option to be searched either before a Gazetted Officer or before a Magistrate. This Court does not accept that part of the evidence as regards informing the appellant about his right of being searched either before the 8 Gazetted Officer or before the Judicial Magistrate or giving him the option of exercising his right of being searched before either of the two authorities, because that part of compliance of the provision of Section 50 of the Act was not required to be observed in the facts of the present case. One has always to remember that there is a difference between the search and recovery from the personal search of the accused and search and recovery of the substance or drug which could be made from the luggage of a person. There could be a lot of decisions indicating that the search and recovery are different from each other and if the recovery could be from the bag or luggage of a person then compliance of Section 50 of the Act was not required to be observed ( Please see the decisions reported in (2004) 3 S.C.C. 453, (1999) 8 S.C.C. 257,(2005) 4 S.C.C.,350 and (2001)3 S.C.C. 28). However, I accept the evidence of the witnesses that there was a Jhola which was searched and that Jhola was lying by the side of the man seated on the Bench or somewhere around the Bench when the complainant and others went there and picked up the Jhola for search. When I was perusing the statement of the appellant under Section 313 Cr.P.C. the question which was put to the appellant was that the Jhola was lying on the platform no.3/4 of Muaffarpur railway station and the recovery was made therefrom. The circumstances appearing from the evidence may indicate that Jhola might have been recovered but it appears not clearly making out a case as to whether that Jhola was of the appellant or somebody else lying by the side of the man who was sitting on the Bench affixed to the platform. There could a probability that the man who had brought the Jhola there might have gone somewhere and an innocent man who was sitting on the Bench was stated to be carrying the Jhola and, 9 as such, he was saddled with the accusation that he was carrying the Jhola and narcotic substance or drug was kept therein. This is the reason that the appellant was giving out of his defence in reply to one of the questions put to him under Section 313 Cr. P.C. when he had some definite allegation to thrust upon the shoulder of the customs department by stating that that he had been threatened by a constable of the customs department on account of some dispute with him prior to the present occurrence to implicate him in some false case and, as such, his false implication. 11. As regards the compliance of Section 52-A of the Act, I am of the opinion that it was simply deficient as regards the full compliance and the most important part of the compliance of drawl of representative samples in presence of the Judicial Magistrate and submission of the report in that respect by such a Magistrate appears lacking on account of which it may be held that the appellant might have been implicated. 12. In view of the above facts and circumstances appearing therefrom, I am of the view that the appellant deserves to be acquitted on account of being given the benefit of doubt, as a result whereof, I allow the appeal and acquit the appellant of the charges of which he was convicted, by setting aside the judgment of conviction and order of sentence passed upon him. 13. Appellant Chhathu Sah in custody. He shall be released forthwith if not wanted in any other case. ( Dharnidhar Jha, J.) Patna High Court The 29th August, 2011 Kanth/N.A.F.R.