Criminal Appeal (SJ) No.180 of 1996 ----- Against the judgment and order of conviction dated 30th July, 1996, passed by the 1st Additional Sessions Judge, Purnea, in Special Case No.21 of 1993. ---- =========================================================== 1. Ajay Kumar Saini @ Ajoy Saini son of Shri Ramesh Chandra Saini, resident of Parial Lari, P.S.-Pathankot, Dist- Gurudaspur (Punjab) & 2. Arvind Kumar son of Sri Laxmi Narayan, resident of village- Mainstoli, P.S.- Mugalsarai, District- Varanasi (UP) .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s =========================================================== Appearance: For the Appellant/s : Mr. N. K. Agrawal, Sr. Advocate with Mr. Anujit Sinha, Advocate For the Respondent/s: None =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH) 1. The appellants have been convicted under section 20 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to undergo rigorous imprisonment for five years and to pay a fine of rupees twenty five thousand in default of which will go for further imprisonment for two years by the 1st Additional Sessions Judge-cum- Special Judge, Purnea, by judgment dated 30th July, 1996, in Special Case No. 21 of 1993. 2. The case of the complainant (PW 2) N.K.P. Mandal, Inspector of Customs Department, Purnea Circle, is that on 12.08.1993 he received confidential information that two trucks bearing registration no. HR-01-B-3018 and DL-1L- 3721 loaded with Nepali Ganja concealed with house hold articles are moving from Siliguri to Barauni side on N.H.31. On getting this information, he intercepted the truck bearing registration no.DL-1L-3721. He further alleged in the complaint petition that the said truck was seized at Purnia More, Near Dalkola N.H. 31 and Patna High Court CR. APP (SJ) No.180 of 1996 dt.07-07-2011 2 was brought from there to Purnea Customs Preventive Office along with the driver and khalasi, who are the present appellants. On reaching Purnea Customs Preventive Office, two independent witnesses were called in case of seizure of Nepali Ganja with household articles from truck bearing registration no. HR-01-B- 3018 before whom as well as the driver and khalasi of truck bearing registration no.DL-1L-3721 after the water proof cover was opened and from it many packets of Nepali Ganja wrapped in plastic paper were found concealed. The total weight of the Ganja was 407 kg. which was valued at rupees about 16.50 lac. From this written statement given by the informant, there are two things which come to light; one is that two trucks were seized and searched at the Purnea Customs Preventive Office and two that many bags of Nepali Ganja was said to be recovered. In the written statement, it is not clarified as to whether the seizure was made from truck bearing registration no.DL-1L-3721 or HR-01-B-3018. Further, important thing to be noted is that number of packets of Nepali Ganja has not been mentioned in the written report. Similarly, in the seizure list, I find that there is no mention about the number of packets having been recovered even though it has been noted that recovery was from the truck bearing registration no.DL-1L-3721. 3. From the evidence of PW 2, the informant, once again I note that he has stated in paragraph 2 that two trucks were intercepted bearing registration numbers mentioned above, one of which bearing registration no. DL-1L-3721 was searched by him, whereas, other truck was searched by PW 1, Ram Bharose Ram, Custom Inspector and Ganja along with many household articles were recovered from both the trucks. However, I find that neither the owner nor the driver or khalasi of the other truck have been made accused in the present case which is extremely suspicious. The said Ram Bharose Ram, Customs Inspector has been examined as PW 1. He has stated likewise that on the date of occurrence two trucks were intercepted and from both the trucks Ganja had been recovered. In both the Patna High Court CR. APP (SJ) No.180 of 1996 dt.07-07-2011 3 trucks, one driver and one khalasi had been found. However, I find that only the driver and khalasi of the truck bearing registration no. DL-1L-3721 have been made accused in the present case. There is no explanation whatsoever as to what happened to the occupants of the other trucks from which Ganja was allegedly recovered. What makes the prosecution case even more untrustworthy is the fact that nowhere there is any mention of exact number of packets that were recovered from the truck of which the present appellants were occupants. PW 4 member of the raiding party apart from having said that Ganja had been recovered from both the trucks has also stated that samples had been taken from two packets. 4. On a fair appraisal of the facts enumerated above, this Court finds that the prosecution has not brought any cogent material as to how many packets, if at all, were recovered from the truck of the present appellants. This is an important lapse since it is their own consistent case that “Ganja” was recovered from both the trucks. Resultantly, the exact weight of „Ganja‟ recovered from the appellants is not proved. The prosecution has also not given the exact number of total packets recovered. The witnesses have vaguely stated many packets were recovered. The fact that only two samples were taken of the many packets also makes it difficult for this Court to conclusively arrive at the finding that „Ganja‟ recovered was of commercial quantity. 5. Under the circumstances, by giving benefit of doubt to the appellants, this appeal is allowed. The conviction and sentence of the appellants is hereby set aside. They are also discharged from the liabilities of their bail bonds. 6. In the result, this appeal is allowed. (Anjana Prakash,J.) Patna High Court, Patna. Dated the 7th July, 2011 NAFR/ JA/-