CRIMINAL APPEAL No.687 OF 2007 (Against the Judgment of conviction and Order of sentence dated 24th of April, 2007 passed by Sri Mazhar Imam, Sessions Judge, Katihar in G.R. Case No.31 of 2003). ------ KALLU SEIKH----------------------------Appellant. Versus STATE OF BIHAR-------------------------Respondent. ------ For the Appellant:S/sri. Akhileshwar Prasad Singh and Raghvendra Kumar Singh, Advocates. For the State : Sri Ashwini Kumar Sinha, A.P.P. -------- P R E S E N T THE HON'BLE Sri JUSTICE DHARNIDHAR JHA. THE HON’BLE Sri JUSTICE RAKESH KUMAR. Dharnidhar Jha & Rakesh Kumar,JJ. The solitary appellant was tried by the learned Special Judge (N.D.P.S.Act), Katihar in G.R. Case No.31 of 2003 for a charge under Section 20(b)(i)of the N.D.P.S.Act and was found guilty by judgement dated 24.4.2007 and after being heard on sentence on 25.4.2007 was directed to suffer rigorous imprisonment for 14 years as also to pay a fine of Rs.1,00,000/-. In default of paying the fine the appellant was to suffer, as per the direction of the learned trial Judge, further period of rigorous imprisonment for four years. 2. The facts of the case lie in a very narrow compass. The railways officials found that the - 2 - passenger travelling on berth no.41 of 2423 DN Rajdhani Express running in between Gauhati and New Delhi was having a ticket in a fake name, namely, S.Das. The intimation was forwarded to the control room and from there to the Katihar Junction where the train was intervened by the informant, P.W.2 Shiv Prasad Dwivedi, Chief Ticket Inspector, R.P.F. constable Kuber Singh (P.W.3)and R.P.F. Sub-Inspector Brij Bihari Ram(P.W.5). The man was found to be the appellant and he was also allegedly found in possession of a plastic bag and an attaché case. On search of the attaché case two packets containing about 23.7 K.Gs. of ganja were recovered in presence of witnesses P.W.1,Sub-Inspector and P.W.6, Constable Hari Kishore of the R.P.F. and accordingly R.P.F. personnel prepared seizure memo Ext-1. 3. For, the appellant was travelling in a fake name, he was detained for committing offence under Section 142 of the Railways Act and after having recovered the narcotic substance the R.P.F. personnel felt that it could be a fit case for being investigated into by the G.R.P.S. and as such the appellant along with the seized article was produced before the G.R.P.S. with a written report Ext-4 and accordingly, the F.I.R. Ext-3 was drawn up. The police also prepared seizure memo on the 21st of March, 2003 on production - 3 - of the seized substance. 4. There is no doubt in it as may appear from Ext-9, the report on the chemical analysis submitted by the Forensic Science Laboratory, Patna that the sampled substance was found to be ganja. This report Ext-9 is dated 23.3.2006. 5. We have heard Sri Akhileshwar Prasad Singh, learned counsel appearing for the appellant and Sri Ashwini Kumar Sinha, learned A.P.P. for the State. The learned counsel appearing for the appellant has set up various attacks against the findings recorded by the learned trial Judge while convicting the appellant, but one of the most important out of them was that the provision of Section 52 of the N.D.P.S.Act was not complied with which vitiated the very trial and as such the order of conviction passed against the appellant. In support of the contention a Division Bench decision of this Court reported in 2002(4)PLJR 787 Ashok Kumar Pal Vrs. State of Bihar was placed before us in addition to Supreme Court decision rendered in Mohinder Kr. Vrs. State, Panaji, Goa, reported in (1998)8 SCC 655. The decision of Mohinder Kumar has been placed before us to submit that compliance with the provisions of Sections 52 and 57 of the N.D.P.S. Act was a mandate and the very non-compliance, as such, vitiates the very - 4 - trial and as such vitiates the judgement. The same finding appears recorded by the Division Bench of this Court in the case of Ashok Kumar Pal(Supra) also when it was observed by their Lordships as may appear from the perusal of paragraphs 15 to 17 that if there was any serious loopholes in the seizure or packaging then benefit thereof must accrue to the accused. It was contended besides the above that the identity of the accused during the course of trial appears doubtful and that the procedure followed for search and seizure and investigation was not approved by law. 6. We must point out at the very outset that the seizure was made by Brij Bihari Ram, an officer in the rank of Sub-Inspector of R.P.F. and if one considers the provisions of Section 42 of the N.D.P.S. Act one may find that any personnel of the R.P.F. or any such organization either under the state or the central government above the rank of sepoy was authorized under law to hold a search of premises or a person or to make the seizure. In that view, there does not appear any illegality which could go to the root of the matter. The seizure by the police does not have much importance in our opinion because it has already been seized by a public servant who was also authorized under law to seize it and the second seizure by the - 5 - police on production of the same, even if it had not been made could not affect the position any bit. 7. As regards the identity of the appellant we are also not much influenced by the contention of the learned counsel inasmuch as P.W.1, P.W.6 and P.W.2 Shiv Prasad Dwivedi appear giving sufficient evidence establishing that it was this appellant who had been travelling in a fake name. Besides, the seizure of certain documents which were brought on record from the possession of the appellant also establishes his identity. Thus, we are not in doubt that it was this appellant who was travelling in a fake name in the Rajdhani Express on berth no.41 in one of its compartments of A.C.3 tier. 8. As regards the contention that the articles and luggage may not be belonging to the appellant, we do not find any convincing material brought on record to say that those were not belonging to the appellant inasmuch as officials in performance of their official duty had intervened into the train and had brought out the appellant with his belongings from a railway compartment. Their acts has a seal of official sanctity and regularity about the performance of those acts has to be presumed. If one challenges the legality of such an official act, some very onerous burden shifts upon - 6 - him as he is attempting to challenge the very veracity of a legal presumption and that could not be done by mere suggestions or arguments. 9. The above brings us to consider as to whether the provisions of Section 55 of the Narcotic Drugs of Psychotropic Substance have been complied with. Before we consider the provision itself and the obligations it casts upon the investigating agency, we must note that the Supreme Court in its decision in Mohinder Kumar was categorically stating after making reference to the Constitution Bench decision in State of Punjab Vrs. Balbir Singh (1994) 3 SCC 299 that it was mandatory that the officer making arrest and seizure should comply with the provisions of Section 55 of the Act. The provisions reads as under:- “55.Police to take charge of articles, seized and delivered.-An officer- in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” 10. On a bare perusal of the provision what comes out is that as soon as any narcotic substances is - 7 - delivered to the officer-in-charge of a police station by any officer he has to affix a seal over the seized property. It further requires the officer-in-charge to allow the officer who had seized the article to take samples from the seized substance and further requires that all samples so taken shall be sealed with a seal of the officer-in-charge of the police station also. Thus, what is the requirement of law is that not only the seized substance has to be sealed and thereby secured but while a sampling of the article is being done for the purposes of forwarding it to the F.S.L. for its analysis, then at that time also the officer- in-charge is required to put his seal. 11. Now, what is the evidence in this case. P.W.4 Bandhnu Uraon the I.O. of the case has stated in paragraph 7 at page 19, while producing the substance in court that the substance was kept in a wooden box and attaché and both of them were in broken conditions. He has further admitted in paragraph 4 which succeeds paragraph 7 at the same page 19 of the Paper Book that the substance which has been produced by him in Court was not the same as regards its quantity as it was at the time of seizure. He was direct in saying in paragraph 14 of his evidence that he had not got the seized substance weighed. In paragraph 15 the witness - 8 - has admitted that the produced articles were not in the same conditions as they had been kept in the Thana Malkhana. The above evidence of P.W.4 clearly indicates that the same substance might have been tampered with and that there could be a possibility that some part of it might have been removed or some part of it might have been added to it. If there was no sealing as per the provision of Section 55 of the Act at the time of the substance being kept in the Malkhana one could not be certain about it that the same substance remained there throughout till it was produced in court. Similar, could be the inference when it comes to scrutinizing the sampling of the substance. One could very well infer that when the sampling had been done, of which there is no evidence as to on which date it was done, the same substance was there which was seized from the appellant. The very evidence of P.W.4 makes it doubtful that the same substance which was seized from the appellant was produced in court or in other words the substance which was produced in court was really seized from the appellant. If these two aspects of the compliance of law are doubtful as appear to us, then the very conviction of the appellant appears not sustainable. 12. There is another aspect of the case. The - 9 - chemical analysis report Ext-9 indicates that the sampled articles were received in the office of the F.S.L. on 14.5.2003, i.e., about two months after the incident. It remained there on the pretext of being analyzed for about three years and lastly the report could be prepared on the 23rd of March, 2006. If there could a delay of about two months in sampling and sending of the substance and if there could be a long delay of about three years as in the present case in chemically analyzing the sample, the court could be very slow in acting upon the report for the reason that it creates doubts that the same substance was sampled and sent for analysis and further that there was no tampering in the office of the F.S.L. during three years it remained lying there. 13. These are some of the reasons which have weighed very much with us in viewing the findings of the learned lower court which probably missed these important aspects of the matter. It was a case in which the above relevant aspects were very much material to be considered and on consideration of the same by us, the judgement and order of conviction and sentence passed upon the appellant appears not sustainable. Accordingly, the same are hereby set aside. 14. The appeal is allowed. The appellant is - 10 - acquitted. The appellant is in custody. He shall be released forthwith, if not wanted in any other case. Patna High Court, Patna. Dated: The 21st of January, 2010. Brajesh Kumar/A.F.R. (Dharnidhar Jha, J.) (Rakesh Kumar,J. )