Criminal Appeal (SJ) No.563 of 2006 Against the judgment of conviction and order of sentence dated 13.07.2006 passed by Ist Additional Sessions Judge-cum-Special Judge, Sitamarhi in G.R.Case No.290 of 2000, Trial No.42 of 2006. 1. VIKASH KUAMR JAISWAL & 2. BABLOO KUMAR ------- Appellants Versus State of Bihar. .... Respondent ---- For the Appellants: S/Sri Birendra Kant Choudhary & Baidya Nath Thakur, Advocates. For the Respondent:- Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The two appellants were tried by the learned Ist Additional Sessions Judge-cum- Special Judge, Sitamarhi in G.R.Case No.290 of 2000, Trial No.42 of 2006 after being charged of committing an offences under Sections 20, 22 and 23 of Narcotic Drugs and Psychotropic Substance Act and by judgment dated 13.07.2006 were held guilty of committing the offence punishable under Section 20(b)(ii)(B)of the said Act and after being heard on sentence on the same day each of the two appellants were directed to suffer 2 rigorous imprisonment for four years as also to pay a fine of Rs.5,000/-, else to suffer rigorous imprisonment for one year. The appellants preferred the present appeal to challenge the correctness of the finding and propriety of sentence passed upon them. 2. S.I. Manvendra Kumar, P.W.7 was the officer-in-charge of Sursand police station on 22.07.2000. He learnt from some reliable sources that two persons were proceeding with briefcase containing ganja by a jeep bearing registration no.BPA-1962. In order to verifying the information he rushed to Sursand chawk. As soon as the jeep came there, he intercepted it and found two persons sitting in the jeep. The briefcase was also lying in the jeep which was allegedly claimed by the appellants. The key of the same briefcase was in possession of appellant Babloo Kumar. The briefcase was opened and it was found containing 12 K.G. of ganja in four plastic packets, each weighing 3 K.G. The appellants are said to have stated to P.W.7 that they had purchased the substance at Ajmalpatti in Nepal and were carrying it to Khagaria. The two persons were 3 arrested and contraband substance was seized. 3. It appears that a part of the seized article was sampled and submitted for chemical analysis to the Chemical Analysis, Customs, Bihar, Patna, who accordingly, submitted the report indicating that the substance sent for analysis was ganja. The witnesses were examined and after finding material sufficient the two appellants were sent up for trial. 4. During the course of trial as many as eight witnesses were examined, out of whom P.Ws.3, 4 and 5 were declared hostile. P.W.1, a witness to seizure, did not support that recovery was made in his presence but accepted that the seizure memo was carrying his signature. P.W.2 Ajay Kumar Thakur who was the driver of the vehicle also does not appear supporting the prosecution charges. P.Ws.6, 7 and 8 were the witnesses who have been treated as independent witnesses by the learned trial Judge who, accordingly, were supporting the prosecution case. However, the criticism of the learned counsel appearing for the appellants was that they were police personnel who could hardly be independent 4 because as soon as they are found having participated from the very stage of having received the information and are further found associated with all aspects of the search and seizure, then they could naturally be found interested in ensuring that the appellants were duly convicted. It was contended that the investigating officer of the case was not examined nor there was any evidence on compliance of some of the legal aspects of the investigation which goes deeply into the root of the matter and if the judgment of conviction is viewed from those angles, this court has to reach a conclusion that the same could not be upheld. 5. While I was perusing the judgment in question I came across one of the most disturbing aspect of the investigation and trial that in spite of the police having registered a case and having investigated it, they were not following the dictates of their own Manual. The Bihar Police Manual, 1978 has been issued under Sections 7 and 12 of the Police Act by the State of Bihar in exercise of their powers to formulate rules on investigation of police cases. By virtue of 5 rules contained in chapter-42 they have not only established Forensic Science Laboratory, but have also laid down the guidelines as to how that particular laboratory has to work and what are supposed to be chemically analyzed for submitting a report. If one could peruse Rule-1257 of the Bihar Police Manual one could find that general chemical analysis is required to be carried out of drugs of addiction, of narcotics and hallucinogenic drugs, for example, hashish opium barbiturates, Lsd, etc. One of the rules contained in chapter-42 i.e., 1254(f) indicates that the report submitted after analysis of exhibits are to be treated as evidence under Section 293 Cr.P.C. The whole bunch of rules contained in chapter-42 is so elaborate that they laid down the manner in which any exhibit has to be dispatched, received, analyzed and disposed of after its analysis. Not only that after the report is finalized or prepared the rules also contain instructions as to how the same had to be transmitted to the concerned court or to the officer. It was simply saddening to find that in spite of their own rules meant to guide 6 the police officers in matters of submitting the samples of seized exhibits for chemical analysis, they were approaching the chemical analyst of Excise Department for analysis of alleged seized ganja to submit a report to them. There is no reason assigned as to why the rules were departed from by the police officer who was investigating the case. It hardly requires to be pointed out that if there is fixed set of rules for conducting an investigation or carrying out any particular stage of it, then it could never be departed from unless there are compelling reasons suddenly appearing so as to making it almost impossible to follow the rules. The other circumstance which comes to my mind is that the rules could not be followed if on account of some unavoidable circumstances justice could not be done and so as to avoiding injustice or so as to not to allow the prospective report to be influenced, contaminated or otherwise be branded as suspect, the officer may also avoid the rules. 6. We have a full-fledged functional Forensic Science Laboratory with its 7 headquarters in Patna and a Regional Laboratory at Muzaffarpur. May be in 2000 Regional Laboratory, at Muzaffarpur was not functional but there is no reason to show as to why the seized article was not transmitted to the F.S.L., Patna and instead it was sent to the Excise Chemical Analysist at Patna. 7. On perusal of the report Ext-5 what this Court finds is that the Chemical Analyst of the Excise Department was pre- determined to submit a report in support of the prosecution story inasmuch as the report was pre-typed/written with some spaces left vacant at two important places for filling in the two chemical data. If it was already ganja as appears from the first line of the report then the chemical analyst could have got it typed/written simultaneously as to what were the chemical compositions or the percentage of the organic substance of it in the sampled article. There was no reason that it could be done only if two vacant spaces were left for the above purpose which makes the document suspect. 8. Besides, the other infirmity which has been urged before me are like, non- 8 examination of the investigating officer or a complete lack of evidence on the manner as to how the seized article was sampled besides the complete absence of the manner of its dispatch to the laboratory in addition to the non-compliance with the directions of Section-55 of the Act. The judgment of conviction which is being assailed herein appears not sustainable on account of this single fallacy of not submitting the sampled article for chemical analysis to the F.S.L. and instead transmitting it to the Excise Chemical Analyst, Patna. Besides, the reason which I have already assigned on account of not submitting the article to the F.S.L., the other reason is that the report could not have been admitted as evidence without examining the chemical analyst of excise department because he does not appear as one of the experts enumerated by Section 293 Cr.P.C. The report of any of the scientific experts who have been specifically mentioned in Section 293 Cr.P.C. could only be used as evidence in any enquiry, trial or other proceedings without examining the expert who had prepared the report. There is no 9 exception to the examination of the mere chemical analyst of the Excise Department under the Government of Bihar. Thus, what could be said on exhibit-5 is that, in fact, there was no evidence on record indicating that the seized article or any part of it was Ganja. 9. These are some of the reasons which have struck my mind the most and in view whereof I find that the conviction and order of sentence passed upon the appellants are simply unsustainable in law and accordingly, they are set aside. The appellants are acquitted. The appeal is allowed. If the appellants are still continuing in custody, they shall be released forthwith if not wanted in any other case. Patna High Court, Dated the 11th day of July, 2011, Brajesh Kumar/AFR (Dharnidhar Jha,J.)