CRIMINAL APPEAL No.367 OF 2008 ***** Against the judgment of conviction and order of sentence dated 30.01.2008 and 31.01.2008 respectively passed by Shri Binodanand Jha ‘Vinit’, 1st Additional Sessions Judge, Samastipur in N.D.P.S. Case No. 4/2005. 1. RAGHUNATH SINGH, SON OF LATE BABAN SINGH 2. BALESHWAR DAS, SON OF LATE JHAGARU DAS BOTH RESIDENT OF VILLAGE-LARUA, POLICE STATION-TAJPUR HALAI, DISTRICT-SAMASTIPUR. --------------------------------------------(Appellants) Versus THE STATE OF BIHAR---------------------------------------------(Respondents) For the Appellants : Mr. Sandip Kumar Gautam (Adv.) Amicus Curiae For the State : Sri Ashwini Kumar Sinha (APP) P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD ****** S.K. Sharma & Gopal Prasad, JJ. The appellants have preferred this appeal against the judgment of conviction and order of sentence dated 30.01.2008 and 31.01.2008 respectively passed by the learned 1st Additional Sessions Judge, Samastipur in N.D.P.S. Case No. 4 of 2005 by which the appellants have been convicted under Section 20 (b)(ii)(C) of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the Act) and have been sentenced to undergo rigorous imprisonment for 14 years and to pay a fine of Rs. 1.25 lakhs and in default of payment of fine to further undergo imprisonment for a period of three years. 2 2. The prosecution case is based on a written report of the informant Subodh Kumar Singh, the Officer In charge of Halai O.P. that on 30.09.2005 at about 4 A.M. he received secret information that Raghunath Singh and Ram Kishore Singh, resident of Village Larua and Baleshwar Das have kept huge quantity of Nepali Ganja and arms for selling. On receiving information, the informant informed the Dy. S.P., Samastipur, Sadar, Inspector, Samastipur on telephone and recorded a Sanha entry and he along with Gurudev Prasad (P.W. 5), Yogendra Jha (P.W. 7), Shivnath Prasad (P.W. 6), Uday Shankar Paswan (not examined), Mithilesh Kumar Singh (P.W. 9) and Bhuvneshwar Prasad Yadav (P.W. 11) proceeded and reached Village Larua. Further on smelling of the reaching of police, Ram Kishore Singh and his family members fled away, whereas Raghunath Singh was found present at his house and hence, in presence of the independent witnesses Virendra Pd. Singh (P.W. 1), Bhushan Pd. Singh (P.W. 2) and Anant Kumar Tiwary (P.W. 3) the search was made and during the search from the house of Raghunath Singh (Appellant No. 1) 15 packets of Ganja kept in a steel box was recovered. Each packet was containing about 8 kgs of Ganja. In the meantime, Dy.S.P, Inspector and Officer-in-Charge, Mufassil P.S., Samastipur reached and in their presence the seizure list was prepared 3 and signed. From the house of Ram Kishore Singh, 12 packets of Ganja recovered, each containing 8 kgs of Ganja and from the house of Baleshwar Das, 12 packets and 2 small packets were recovered, each containing 8 kgs and 3 Kgs. of Ganja respectively. The seizure list was prepared and signed by the witnesses. 3. On the basis of the written report the First Information Report was drawn and after investigation the charge sheet was submitted. Cognizance was taken and consequently, the charge was framed under Section 20 (b)(ii)(C) of the Act against the appellants, namely, Raghunath Singh and Baleshwar Das which was explained to them to which they pleaded not guilty and claimed to be tried. 4. During trial 13 witnesses were examined. They are Virendra Pd. Singh (P.W. 1), Bhushan Pd. Singh (P.W. 2), Anant Kumar Tiwary (P.W. 3), Ram Shekhar Singh (P.W. 4), Gurudev Prasad (P.W. 5), Shivnath Prasad (P.W. 6), Yogendra Jha (P.W. 7), Narendra Prasad Singh (P.W. 8), Mithilesh Kumar Singh (P.W. 9), Kedar Nath Singh (P.W. 10), Bhuvneshwar Pd. Yadav (P.W. 11), Dilip Kumar Singh (P.W. 12) and Subodh Kumar Singh (P.W. 13) the informant. The documentary evidences are signature of witnesses on the seizure list (Ext. 1 to 1/1), signature of witnesses on memo of arrest (Ext. 1/2 to 1/3), signature of witnesses on seizure list 4 (Ext. 1/4 to 1/5), signature of witnesses on memo of arrest (Ext. 1/6 to 1/7), and signature of witnesses on the seizure list (Ext. 1/8 to 1/9). The three seizure lists (Ext. 2 to 2/1), the written application (Ext. 3), the formal First Information Report (Ext. 4) and the chemical examination report (Ext.5). 5. On Consideration of oral & documentary evidences the learned trial Court convicted and sentenced the appellants as stated above at the outset. 6. The learned Amicus Curiae has contended that there was non-compliance of Section 55 of the Narcotic Drugs and Psychotropic Substances Act. As the prosecution has not proved about the sample having taken on the spot and sealed on the spot. Rather from the evidence it has come that the sample was taken after two months when the seized articles were never sealed on the spot. As there is no evidence that the articles were seized on the spot and the sample has been taken in court after cognizance. 7. The learned counsel for the State, however, contended that the prosecution has proved its case beyond all reasonable doubts. 8. Hence, on the respective submissions of the parties the question for consideration is whether the prosecution has been able to prove the charges beyond all reasonable doubts or not. 5 9. P.Ws. 1, 2, 3 and 4 are the independent witnesses of the seizure list. These witnesses have proved their signatures on the seizure list and on the memo of arrest. However, as usual they have denied that the seized articles were seized in their presence. 10. P.W. 5 is one of the members of the raiding party. P.W. 12 is the I.O. and P.W. 13 is the informant. However, P.W. 5, 6, 7, 8 and 9 have supported the prosecution case about the raid conducted in the houses of the appellants and recovery of 112 kg of Ganja kept in a steel box from the house of appellant no. 1 and recovery of 102 Kg. of Ganja kept in a steel box from the house of the appellant no. 2. Thereafter, the seizure list was prepared about the recovery of the Ganja from the houses of the appellants upon which they signed and the witnesses have also signed. However, none of the witnesses have stated that the said seized Ganja was ever sealed nor have stated that where the said Ganja was kept and whether any sample was taken. 11. However, P.W. 10 also supported the prosecution case about the seizure of 12 packets of Ganja each containing 8 kg as well as 2 packets each containing 3 kg of Ganja from the house of the appellant no. 2 and the seizure list was prepared. 12. P.W. 11 has also supported the prosecution 6 case about the seizure of Ganja from the house of the appellants and the appellants were arrested. However, P.W. 13 is the informant and he has also supported the prosecution case about the seizure of alleged Ganja from the house of the appellants and the seizure list having been prepared in which he signed as well as accused persons and the witnesses have also signed. However, there is no mention that what he did with the said seized Ganja. However, neither it is mentioned that what happened with the seized Ganja or the seized Ganja was handed over to the I.O. or not and whether sample from Ganja was taken to sent to Forensic Science Laboratory. 13. P.W. 12 is the I.O. However, this witness has stated that the occurrence took place on 30.09.2005 and the investigation of the case was handed over to him and he resume the investigation and, thereafter, he recorded the further statement of the informant and the statements of the witnesses, even inspected the place of occurrence. However, he has filed a petition for examination of the said Ganja before the District Judge on 23.12.2005 and sent the Ganja by Memo No. 1126 on 23.12.2005. However, there is no mention that where the sample was taken. 14. However, it is pertinent to mention that the occurrence took place and the Ganja was seized on 7 30.09.2005 and the said Ganja was said to have been sent through the District Judge on 23.12.2005. There is no mention in the entire evidence that where the Ganja was kept. During the period, neither the informant nor the I.O. who resume the charge of investigation on 30.09.2005 itself has mentioned in the evidence whether the alleged seized Ganja was ever sealed and where the said Ganja was kept till the sample was taken and sent to the Forensic Science Laboratory for chemical examination. There is no mention at all in the entire evidence that where the seized Ganja was kept for the period from 30.09.2005 to 23.12.2005 nor there is any mention that whether the said Ganja was sealed or not on the spot or even at the police station. Hence, it is true that the mandate of Section 55 of the Act has not been complied with. 15. However, since the prosecution has not established that whether the alleged Ganja was seized or whether sealed or where it was kept and when it was sent after taking the sample from the said Ganja and if the said Ganja was not sealed on the spot or on the date of seizure and there is no mention in the entire evidence that what was the mode of taking the Ganja. Whether the Ganja was taken from each packet or one of the packets and the most important part is that 8 whether the seized Ganja was sealed on the date of seizure or not. This creates a great doubt in relying upon the chemical examination report that the said seized articles were Ganja. When the keeping of the seized articles has not been established to found to be in accordance of law and further the fact that whether the said articles seized was sealed or not. 16. It is apparent that the Ganja was seized on 30.09.2005 and the alleged sample have been taken on 23.12.2005 after about three months and hence it creates a great doubt. When the said seized Ganja not sealed and no mention where it was kept and hence there is possibility of mistaken sample articles been changed. Therefore, we are of the considered opinion that the prosecution has not established that the seized Ganja was sealed on the date of seizure though the sample was sent on 23.12.2005 by the order of the court. There is also no evidence that who took the sample and whether the sample was taken from the seized Ganja which was kept in sole and safe place and hence the appellants are entitled for benefit of doubts and hence the prosecution has not been able to prove the charges beyond reasonable doubts and however, the lower court did not go into the question about the sealing or keeping of the alleged Ganja after seizure and hence the conviction and order of 9 sentence passed by the lower court against the appellants is hereby set aside and the appeal is allowed. The appellants are directed to be released forthwith, if not wanted in any other case. 17. As in this appeal Mr. Sandip Kumar Gautam, Advocate was appointed as Amicus Curiae to assist the Court on behalf of the appellants and he has argued. The Secretary, High Court Legal Services Committee, Patna shall ensure payment of fee to Mr. Sandip Kumar Gautam, Advocate for assisting this Court as Amicus Curiae. 18. Let a copy of this order be given to Mr. Sandip Kumar Gautam, Advocate for needful. Patna High Court, Patna Date 27th April, 2010 kksinha/- N.A.F.R. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.)