CRIMINAL APPEAL No. 744 OF 2006 ( In the matter of appeal against the judgment of conviction dated 22nd May, 2006 and order of conviction dated 26th May, 2006 passed by Shri Bipin Dutta Pathak, 1st Additional Sessions Judge, Rohtas at Sasaram in Trial No. 24 of 2005 arising out of Kochas Police Station Case No. 05 of 2002) ******* JAI MANGAL PASWAN, SON OF THAG HAZRA PASWAN, RESIDENT OF VILLGE BALUA CHOWK, POLICE STATION MOTIHARI, DISTRICT MOTIHARI ………………………………………………………………………………..APPELLANT Versus THE STATE OF BIHAR …………………………………………………RESPONDENT ************* FOR THE APPELLANT :- MS. RINA SINHA, AMICUS CURIAE FOR THE S T A T E :- MR. S. N. PRASAD, A.P.P. ************ P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. The sole appellant has been convicted under Section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) to undergo rigorous imprisonment for ten years and further convicted to pay a fine of Rs. One lakh within a period of two months, in default of which the appellant has to further undergo simple imprisonment for a period of two years. The appellant is in custody since 16.01.2002. 2 The occurrence has been taken place on 16.01.2002. It is alleged in the First Information Report that on information that Ganja was being smuggled in the house of Ram Kripal Choudhary, the Officer-in-charge of Kochas Police Station along with a raiding party rushed to the spot and they were able to apprehend this appellant. It is stated that 7 kgs. of Ganja was recovered from the possession of Ram Chandra Chauhan, 7 kgs. of Ganja was recovered from the possession of Jai Mangal Paswan and 10 kgs. of Ganja was recovered from the possession of Kishun Raut. Eight witnesses have been examined in this case. At the outset, it may be stated that the independent seizure list witnesses have not been examined to prove the seizure made from the appellant. Counsel for the appellant submits that the seizure of Ganja has not been proved by the prosecution, the procedure for preparing the search and seizure list has not been followed and the witnesses deny being present at the time of the seizure. PW 1 Havildar Mahendra Singh has not been able to support the prosecution case as he has said that he can not identify the appellant in the dock. It is further stated by him that the seizure list was prepared at the Police Station, contrary to the case made out in the First Information Report that the seizure was prepared at the spot. 3 On the whole, this witness is vague and does not remember anything with respect to the occurrence that took place on that day. PW 2 Constable Ram Jatan Prasad states that Daroga had disclosed to him that Ganja was recovered from the appellant and the others. In effect, PW 2 is not eye- witness to the alleged seizure. This aspect is further supported when PW 2 states at paragraph 5 that he did not see the seized Ganja. PW 3 Constable Yogendra Ram and PW 4 Constable Krishna Kant Yadav do not remember the procedure that took place after the raid was made and thereby give a complete go bye to the case made out in the First Information Report. PW 5 Anil Kumar Yadvendu is the Officer-in- charge. According to PW 5, the search and the seizure list was made and prepared at the house of Ram Kripal Chaudhary which is the place of occurrence. Nawal Kishore Ram prepared the seizure list and samples of Ganja were sealed by Nawal Kishore Ram. Statement made by the informant is not supported by PWs 1, 2, 3, 4 and 6. PW 6 Constable Jag Narayan Singh, on the other hand, said that it was the BADA BABU who had given details to him regarding the seizure made in this case. Infact, he states that he has not seen the accused, the search being 4 made but admits that the seizure list was prepared before him. PW7 Constable Heera Singh supports the informant’s case that the search was made in the courtyard of the house but in cross-examination at paragraph 2 he has stated that he did not see where the search was made. PW 8 Kamta Paswan is the chowkidar of the village. This witness supports the prosecution version inasmuch as he states that Ganja was seized and weighed at the place where the appellant was taken into custody. This witness, however, claims that he was not present when the sample was separated from the seized Ganja and sealed. On the basis of the aforesaid evidence where only two witnesses i.e. the informant and PW 8 somewhat support the story of search and seizure, it becomes difficult for this Court to hold that the manner in which the investigation was conducted was fair. The fact that only two out of total of eight witnesses admit to being present at the time of search, although, they have been described to be the members of the raiding party, gives a blow to the prosecution story. Apart from the evidence that has come during the trial of the case, it appears that the informant had not given any information to any senior authority regarding the occurrence which ought to have been done. Although, this is 5 not mandatory provision that such a report should be made to the immediate officials superior as envisaged under Section 57 of the Act, it becomes an important factor for the purposes of considering the value of the evidence that has come during the trial. As indicated above, the prosecution has not been able to show that the search and seizure was made in the manner prescribed under the law and there are too many discrepancies with respect to the fact whether the search was made in presence of the raiding party and whether the seizure list was prepared at the place of occurrence or at the Police Station. Combining the evidence that has come on record with the fact that the Investigating Officer and the seizure list witnesses have not been examined to substantiate the prosecution case, it becomes difficult for this Court to hold that the prosecution has succeed in proving its case beyond all reasonable doubts. In the result, the appeal is allowed. The judgment of conviction dated 22nd May, 2006 is set aside. The appellant is acquitted of the charges levelled against him and he is directed to be released forthwith if not required in any other case. ( Sheema Ali Khan, J. ) Patna High Court April 27, 2009 N.A.F.R./Anand