Criminal Appeal No. 835 of 2008 (D.B.) **** Against the judgment and order, dated 14.07.2008, passed by Sri Ajeet Kumar Ojha, Additional Sessions Judge, I, Madhubani, in G.R. Case No. 3 of 2005/Tr. Case No. 1 of 2005 **** Lakshmi Giri, son of late Harihar Giri, resident of village Sahid Chowk, P.S. Jainagar, district Madhubani .. Appellant Versus The State of Bihar .. Respondent **** For the appellant .. M/S Ajay Kumar Thakur, Imteyaz Ahmad, Kumar Kaushik, Advs. For the respondent .. Mr. Ashwani Kr. Sinha, A.P.P. **** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Shyam Kishore Sharma & Gopal Prasad, JJ. The sole appellant has been convicted under Section 20(b)(i)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and has been sentenced to undergo rigorous imprisonment for fifteen years and also to pay a fine of Rs.1,50,000/- and in default to undergo rigorous imprisonment for five years in G.R. Case No. 3 of 2005/Tr. Case No. 1 of 2005 passed by Sri Ajeet Kumar Ojha, Additional Sessions Judge, I, Madhubani. 2. The prosecution case, as alleged in the written report by Sub Inspector of Police, Seema Surakchha Bal, Jai Prakash Thapalyal that he along with Head Constable, Ratan Bahadur Rai, 2 P.W. 4, Lance Nayak, Gopal Gohai, P.W. 9, Constable Pranav Handique, P.W. 7, Constable Vibhash Rai, P.W. 6, Constable Anil Senapathi, P.W. 8, Constable Barun Prajatpati, (not examined), Constable Babu Ram Thakur, P.W. 5, Constable, Ramjee Das, (not examined), Constable Rupun Barman (not examined) at about 12.30 p.m. on 04.02.2005 was on patrolling duty on Jainagar Madhubani road then found a person along with a bag near the petrol pump. On seeing the police the person started fleeing away and then he was chased and caught and disclosed his name as Lakshmi Giri (the appellant) and on search from his bag 2.700 Kg of charas was found and the seizure list was prepared before the witness, Ram Lalit Paswan, P.W. 2, Babulal Paswan, P.W. 3, and Ganesh Paswan, P.W. 1, with regard to the seized article the appellant, Lakshmi Giri did not produce any paper. On the basis of written report of Jai Prakash Thapalyal, the informant, first information report was drawn and after investigation charge sheet submitted, cognizance taken and subsequently the charge was framed for offence under Section 20(b)(i)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. During the trial ten witnesses were examined, who are P.W. 1, Ganesh Paswan, P.W. 2, Ram Lali Paswan, P.W. 3, Babulal Paswan, P.W. 4, Ratan Bahadur Rai, P.W. 5, Baburam Thakur, P.W. 6, Bibhas Rai, P.W. 7, Pranab Handique, P.W. 8, Anil Senapati, P.W. 9, Gopal Gohai and P.W. 10, Abdul Matin. However, the informant and the investigating officer of the case, has not been examined. The documentary evidence is Exhibit 1, the report of the Forensic Science Laboratory, which has been formally proved by P.W. 10, who is a taid. After considering the oral and documentary 3 evidence, adduced on behalf of the parties, and taking into consideration the respective submissions the learned trial Court convicted the appellant, as stated above. 4. The learned counsel for the appellant, however, contends that the informant was a Sub Inspector of Police of Seema Surakcha Bal and is not authorized under Section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to conduct the search and seizure. It has further been contended that though the article seized, but, there is no evidence whether the said seized articles were sealed or whether the sample having been taken out from the said seized article and the sample having been sealed or/and was ever sent to the Forensic Science Laboratory for chemical examination and, hence, the compliance of Section 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has not been established which has caused prejudice to the accused, hence, it can well be said that the prosecution has not been able to prove the charges beyond reasonable doubts. 5. The learned counsel for the State, however, fairly concedes that it is true that there is overwhelming evidence about apprehending the accused and seizing the article, but, there is no evidence at all on behalf of the prosecution that whether the said seized article was ever sealed and there is no evidence where this seized article was kept and whether any sample was taken out or was sent to Forensic Science Laboratory. 6. Hence, on respective submissions by the parties the question for consideration is whether the prosecution has been able to prove the charges beyond reasonable doubts. 4 7. P.W. 1, Ganesh Paswan, is a seizure list witness. He has not supported the prosecution case and has been declared hostile by the prosecution. 8. P.W. 2 has also not supported the prosecution case though has stated that while he was taking tea at the tea stall then the personnel of Seema Surakchha Bal came and asked him to sign. This witness, however, stated that his thumb impression was taken. 9. P.W. 3 has also not supported the prosecution case and has also been declared hostile. 10. P.Ws. 4, 5, 6 and 7 are members of the raiding party and they have supported the prosecution case that the appellant was seen fleeing away along with the bag and then he was apprehended and from his bag, on search, 2.700 Kg of charas was recovered and the person, who was caught, was brought to the Police Station, after preparing the seizure list and they have stated that the seizure list bear the signature of the independent witnesses. 11. P.W. 8 has also stated that from the person, caught, a black bag was recovered and when he was enquired what is there in the bag then he took out the article and showed that this is charas and then he was taken to Police Station. 12. P.W. 9 has also supported the prosecution case that one person was caught who disclosed his name as Lakshmi Giri and that person gave his bag and disclosed that there was charas in it. 13. P.W. 10 is a formal witness, who has formally proved the Forensic Science Laboratory report. 14. However, in the entire evidence there is no whisper at all that after seizing the charas where the said charas was kept and whether any sample was taken out from the bag or not or whether 5 sample and seized article were sealed and whether the said sample from the seized article was ever sent to Forensic Science Laboratory or not. The report of the Forensic Science Laboratory has been formally proved, which mentions about the receipt of parcel in connection with Jai Nagar P.S. Case No. 23 of 2005 on 07.03.2005, where the occurrence is dated 04.02.2005. However, there is no mention in the entire evidence where the seized articles were kept, when sample was taken, whether the seized article sealed or sample taken were sealed, whether the seized article was sent and where the seized article was kept after it’s seizure till the sample was taken out and sealed. 15. The learned counsel for the appellant, however, contends that the said Sub Inspector of Police of Seema Surakchha Bal was not authorized. It has further been contended that the seizure was made from the jhola which was on the back of the appellant and though it has come in evidence that the person, caught, disclosed about the charas in the said jhola, but, there is non-compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and further in the entire evidence there is no mention that whether the seized article was kept and sealed or not at the place of occurrence or even at the Police Station at the time when personnel of Seema Surakchha Bal produced the appellant with the contrabands and there is no mention that who took out the sample and who sent the sample to the Forensic Science Laboratory and whether the charas was kept in sealed or unsealed condition and the prosecution has not proved this fact, hence, there was no compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Hence, it all 6 produce a grave doubt about the fair dealing in the procedure, hence, the appellant is entitled to benefit of doubt as neither the informant nor the investigating officer has come to depose in the case. 16. We find and hold that the prosecution has not been able to prove the charges beyond reasonable doubts and, hence, the judgment and sentenced recorded by the learned lower Court is hereby set aside. The appellant is in jail, therefore, he is directed to be released on bail forthwith, if nor required in any other case. He is discharged from the liability of bail bond. 17. The appeal is allowed. (Shyam Kishore Sharma, J.) ( Gopal Prasad, J. ) The Patna High Court, The 28th day of April, 2010 N.A.F.R./S.A.