CRIMINAL APPEAL No.139 OF 2008 Appeal against the judgment of conviction and order of sentence dated 23.1.2008 & 29.1.2008 respectively passed by Additional Sessions Judge, Fast Track Court No. III, West Champaran at Bettiah in Trial No. 07 of 2005. ------------ 1. RADHA DEVI @ INDU DEVI W/O LATE PRASAD THAKUR, RESIDENT OF VILLAGE BHISAWA POKHARIYA, P.S. LANGADI, DISTRICT – PARASA (NEPAL). 2. URMILA DEVI W/O LATE SURENDRA MAHTO, VILLAGE – BAKHARI, P.S. LANGADI, DISTRICT – PARASA (NEPAL). ……. APPELLANT. Versus THE STATE OF BIHAR ……. RESPONDENT. ------------ FOR THE APPELLANTS : - MR. RAM YASH SINGH, ADVOCATE MR. GAURI SHANKAR THAKUR, ADV FOR THE RESPONDENT : - MR. ASHWINI KUMAR SINHA, APP. ------------- P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA ******************** Mridula Mishra & Shyam Kishore Sharma, JJ. Appellants Radha Devi @ Indu Devi and Urmila Devi were charged under Section 20(b)(ii)(c) and 23(c) of the NDPS Act and convicted by judgment and order dated 23.1.2008 and 29.1.2008 respectively passed by the Additional Sessions Judge, Fast Track Court No. III, West Champaran, Bettiah in Trial No. 07 of 2005. Both the appellants were convicted under Section 20(b)(ii)(c) and 23(c) of the NDPS Act and sentenced R.I. for twelve years and fine of Rs.1,00,000/- each and in default in payment of 2 fine S.I. for two years. 2. Officer-in-charge of Balthar Police Station, Awadhesh Singh (PW 5) received some secret information at 8.20 in the morning on 28.18.2004 that the smugglers with Narcotic Drugs and Psychotropic Substances are traveling on vehicles as passengers from Nepal to India. On this information he along with security forces came at the road, going from Sikta to Bettiah and started checking the vehicles passing through that road. During this checking a jeep bearing Registration No. BR 22A 8053 coming from the side of Sikta was stopped and a checking of passengers sitting in the jeep was made. During checking, a green colour bag kept by the side of a female passenger, sitting in the front seat was searched in presence of two independent witnesses, namely, Adalat Mahto (PW 1) and Deepak Patel (PW 2). The female passenger disclosed her name as Radha Devi @ Indu Devi and from the bag 8 packets of charas was recovered. Each packet weighing 500 gms and in total the weight of charas was 4 kgs. Another bag kept by the side of another female passenger, namely, Urmila Devi, sitting in the rear seat was also searched and from this bag also 8 packets of 3 charas each weighing 500 gms. in total 4 kgs. were recovered. These two passengers were asked to produce documents relating to the possession of the charas but they were not able to give any satisfactory answer as such they were arrested. Both the female passengers along with the seized articles were brought to the police station and on the basis of self recorded statement of Awadhesh Thakur (PW 5), the Officer-in-charge of Balthar Police Station, instituted FIR of Balthar P.S. Case No. 71 of 2004 dated 28.12.2004 under Sections 20, 22 and 23 of the NDPS Act against Radha Devi @ Indu Devi and Urmila Devi. The case was investigated by Awadhesh Singh, S.I. of Balthar Police Station (PW 5), himself and charge sheet was submitted. The trial was conducted by Additional Sessions Judge, Fast Track Court No. III, West Champaran, Bettiah vide Trial No. 07 of 2005 and finally impugned judgment and order was passed. 3. The prosecution in order to prove the charges against two accused persons, examined altogether 12 witnesses. Out of 12 witnesses, 4 witnesses were declared hostile. PW 1 Adalat Mahto, who was examined as seizure list witness did not support the case of prosecution stating 4 that in his presence jeep was not searched and no seizure list was prepared, he did not sign any seizure list. PW 2 Deepak Patel, another seizure list witness, was also declared hostile as he also did not support the case of prosecution regarding seizure of alleged charas in his presence by the police from the possession of the accused persons, rather he has stated that his signature was taken by PW 5 on a blank sheet of paper, which might have been converted into a seizure list by him. PW 3 is Md. Hadis, driver of the passenger jeep, bearing Registration No. BR 22A 8053 i.e. the jeep on which the accused persons were traveling. He also did not support the case of prosecution regarding search and seizure of packets of charas from the possession of the accused persons in his presence. He was also declared hostile. PW 4 Ramchandra Patel, an independent witness was also declared hostile as he refused to support the case of prosecution. 4. The star witness of this case is Awadhesh Thakur (PW 5), who is the informant of the case. He was posted as Officer-in-charge of Balthar Police Station at the relevant time. He has supported the case of prosecution regarding search and seizure made by him with the 5 assistance of his police party on 28.12.2004 at 8.20 a.m. at Sikta-Bettiah main road. He has deposed that along with PWs 6, 7, 8, 9, 10, 11 and 12 he started checking of the vehicles passing through that road. In course of this checking jeep bearing Registration No. BR 22A 8053 was also stopped and search was made. In course of checking and search, from the possession of two female passengers two bags were recovered. These bags were searched in presence of two independent witnesses, namely, Adalat Mahto (PW 1) and Deepak Patel (PW 2). From these bags 16 packets of charas weighing 500 gms, 8 from each bag were recovered. The female accused persons on query disclosed that they are coming with the charas from Bhiswa in Nepal and going to Bettiah. PW 5 has deposed that in presence of PW 1 and PW 2 seizure list was prepared, on which signature was put by them, voluntarily. Each packet was weighed and a case registered against the accused persons under Sections 20, 22 and 23 of the NDPS Act. PW 5 has admitted that on the basis of his own fard beyan, he instituted a case and since there was no other police officer present, as such he himself started investigation of the case. Other witnesses, such as 6 PW 6 Surendra Kumar Dubey, PW 7 Suresh Yadav, PW 8 Ashok Rai, PW 9 Bodh Prasad Yadav, PW 10 Amerika Gaddi, PW 11 Ramanuj Sharma and PW 12 Harendra Yadav, all were members of the checking party, who in the company of PW 5 are said to have searched the vehicle and in whose presence seizure of alleged charas was made from the possession of two accused persons on 28.12.2004 at 8.20 a.m. 5. Counsel for the appellants has submitted that in fact there is no legal evidence available against the appellants for their conviction under Sections 20 (b)(ii)(c) and 23(c) of the NDPS Act. For investigation under the provisions of NDPS Act a specific procedure has been provided under the Act itself. The observation of this procedure is mandatory and in case it is not followed the conviction is illegal, bad and not sustainable. The evidence of PWs 5, 6, 7, 8, 9, 10, 11 and 12 is sufficient to indicate that procedure under Section 50 was not followed. When the informant and the checking party had some suspicion regarding possession of Narcotic Drugs or Psychotropic Substances with these accused persons, at once the appellants should have been informed regarding such 7 suspicion. Their confessional statement should have been recorded and they should have asked whether they would like to be searched and examined by the authorized Magistrate or in presence of any Gazetted Officer, authorized in this regard under the Act. This being legal requirement under Section 50 of the NDPS Act, its’ violation have caused serious infirmity to the conviction of appellants. Since both the accused persons were females as such as provided under Section 50(4) of the NDPS Act their search and seizure should have been made by a female only. That was also not done. Without observing the conditions for search as provided under Section 50 of the NDPS Act and without seeking their option regarding production of the accused persons before the Gazetted Officer or any Officer authorized under the Act or before the nearest Magistrate, the seizure was made. Since seizures are alleged to have been made from two accused, two seizure lists should have been prepared, with regard to each of the accused persons but only one seizure list was prepared and even on that seizure list, the signature of accused persons were not obtained. The seizure list was also not supplied to the accused persons. Since the 8 signature of the accused persons have not been obtained, the presumption will be that there was no seizure from the possession of the accused persons. A criminal proceeding initiated in the most illegal manner, in violation of the procedure and provisions under the NDPS Act, has finally ended in their conviction. The accused persons were compelled to face charge. During trial also there is no evidence in support of this fact that recovery was made from the possession of the accused persons. Except PW 5 all other witnesses, such as PWs 6, 7, 8, 9, 10, 11 & 12 have stated that the bags were not recovered from the possession of the appellants rather they were kept beneath the front seat and the rear seat of the jeep, where accused persons along with other several passengers were sitting. It has also come in the evidence of these witnesses that as soon as the jeep was stopped, several passengers sitting inside the jeep and at the roof of the jeep, started fleeing away leaving their baggage and luggage. Subsequently two bags kept beneath the seats were recovered and searched. Since there is no specific evidence that the bags were recovered from the conscious possession of the accused persons, they could not have been held liable for 9 conviction under Section 20(b)(ii)(c) of the NDPS Act. 6. Section 20 (b)(ii)(c) of the NDPS Act relates to the punishment for contravention in relation to cannabis plant and cannabis, and provides as follows:- (b) Any one who produces, manufactures, possesses sells, purchases, transports, imports inter-state, exports inter-state or uses cannabis, shall be punishable- (ii) where such contravention relates to sub- clause (b),- (c) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees. 7. In the present case there is no evidence that the appellants were either involved in production, manufacture, sale, purchase, transportation of the cannabis plant or cannabis, simply they were traveling in the same jeep from which the recovery was made, in such circumstances, there was no evidence to connect the appellants with the offence under Section 20(b)(ii)(c) of the NDPS Act. 10 8. Counsel for the appellants further submits that PW 5 has admitted in his evidence that FSL report was not obtained by him prior to submission of the charge sheet and still not available with him. This means that without there being any proper investigation, bringing out material evidence to show prima facie case, charge sheet was submitted against the accused persons only, in case, there would have been Chemical Examiner’s report of the Forensic Science Laboratory, that the seized articles are charas, a prima facie case for sending the accused for facing trial would have been there. Since this report was not available with the Investigating Officer, there was no reason for submission of the charge sheet. 9. The report of FSL, has been marked Ext.5, which indicates that the seizure was made on 28.12.2004, the samples of the seizure articles were sent to the FSL vide Memo No. 351 dated 3.2.2005 and the same was received in the office of the Regional Director, Regional Forensic Science Laboratory on 28.3.2005. The period in between has not been explained by any of the witnesses, as to how the safety and security of seized articles were maintained. 11 10. Counsel for the appellants submits that Section 52 (3) of the NDPS Act clearly provides that every person arrested and article seized shall be forwarded without unnecessary delay to the Officer-in-charge of the nearest police station or the officer empowered under Section 53. 11. Counsel for the appellants submits that since seized articles were not kept in proper custody and proper form, so that court could have been sure that what was seized, only was sent to Chemical Examiner. There is big gap in between seizure and for chemical examination, since an important link is missing, there is no evidence that under whose custody the seized articles were kept after seizure and before sending to FSL. Evidence of PW 5, is completely silent on this point. There is no evidence, how after seizure, samples were prepared and whether it was sealed or remained unsealed. All these circumstance only indicate that investigation in this case has been perfunctory. There is no sufficient evidence even on this point that seizure has been made from accused-appellants only. 12. No doubt, in recent years, our country has 12 been facing a problem of transit traffic in narcotic drugs and psychotropic substances, which has caused problems of abuse and addiction, but in absence of satisfactory proof, the courts can not convict. 13. Section 52A (2) provides that in case of seizure of any narcotic drugs or psychotropic substance, it will be immediately forwarded to the Officer-in-charge of the nearest police station or to the officer empowered under Section 53 of the Act, who will prepare an inventory of seized article, which will contain details relating to their description, quality, quantity, mode of packing, marks, numbers of such other identifying particulars of narcotic drugs or psychotropic substance or the packing in which they are packed, country of origin and other particulars relevant to the identity of seized article, and will make an application, to any Magistrate for the purposes of, (a) certifying the correctness of inventory so prepared, or (b) will take photograph of such substance, correctness of which will be certified by the Magistrate, and will allow to such application. The inventory, photograph and list of samples 13 drawn and certified by Magistrate, is to be considered as primary evidence in respect of such offence, under the Indian Evidence Act. 14. In the present case evidence on record, is glaring example of flagrant violation of the mandatory provision under Section 52A (2) (a) (b) of the NDPS Act. The evidence on record if considered, it is apparent that PW 1 and PW 2 – seizure list witnesses have not supported the prosecution case, as such were declared hostile. PW 5 is the informant of the case and leader of the raiding party. He is also the investigating officer of the case. This in itself is an illegality that being the informant of the case, PW 5 has investigated the case against the settled legal norms. PW 3 Md. Hadis is the driver of jeep, on which accused-appellants and other passengers were traveling. He has given a complete goby to the case of prosecution regarding search and seizure of contravened articles in his presence. PW 4 has denied any incident of search and seizure in his presence. All these independent witnesses have refused to support the prosecution version. PW 5, the informant, has not deposed that provision of section 50 was complied. In para 15 of his deposition he himself has 14 admitted that approval for sending seized samples for chemical analysis, from Magistrate was taken on 2.2.2005, i.e. after more than a month of seizure. FSL report (Ext.5) shows that vide Memo No. 351 dated 3.2.2005, though special messenger, one polythene packet containing sample of charas, seized from Radha Devi @ Indu Devi was sent for chemical examination. No sample of seized article from Urmila Devi was sent for chemical examination. The sample sent through special messenger on 3.2.2005, reached FSL on 28.3.2005. There is no explanation for such delay, neither any cogent reason has been shown to explain the intermittent period. FSL report was submitted on 13.12.2005 and charge sheet was submitted on 28.2.2005, admittedly prior to the receipt of FSL report. In this circumstance, there was no basis for submission of charge sheet. Vehicle was not seized, which was required to be seized. Even statement of any passenger was not recorded. PW 5 in para 21 has admitted that signature of accused persons were not taken on seizure list and FSL report was not received by him prior to submission of charge sheet. He did not even examine about the criminal antecedent of accused persons. No other 15 witness have deposed that bags were recovered from the possession of accused, rather members of raiding party, examined as witness, have stated in their deposition that bags kept under the seats were recovered from the jeep. 15. It is fact that the scheme of penalties under the NDPS Act is deterrent for offences relating to illicit trafficking and strict punishment has been provided for such offences, considering this aspect need has been made to observe mandatory provision relating to entry, search, seizure and other statutory provisions, and they have to be followed with utmost sincerity and diligence. In case there is any flaw in following the mandatory provisions under the Act the benefit of it will always go to the accused. 16. In the present case right from the beginning, when vehicle was searched, FIR instituted and charge sheet submitted, there has been repeated and flagrant violation of provision under the Act, on the part of the prosecution. All mandatory provisions specially Section 50, 50(4) as well as Section 52A (2) (a) (b) (c) of the NDPS Act have been violated by the prosecution and on account of such violations the conviction of the appellants cannot be considered sustainable and legal. 16 17. In view of above discussions, the judgment of conviction and order of sentence passed by Additional Sessions Judge, Fast Track Court No. III, West Champaran, Bettiah in Trial No. 07 of 2005 is set aside. Appeal is allowed. Both the appellants are in custody, as such they are directed to be released forthwith, if not wanted in any other case. Patna High Court, Dated 17th September, 2010, N.A.F.R./DKS (Mridula Mishra, J.) (Shyam Kishore Sharma, J.)