CRIMINAL APPEAL No.698 OF 2007 (DB) ------ Against the judgment of conviction dated 26.03.2007 and order of sentence dated 30.03.2007 passed by Sri Daroga Singh, Ist Additional Sessions Judge, Muzaffarpur in Tr.No. 72 of 2006. ------ DEO NANDAN RAI SON OF LATE DHUPAN RAI RESIDENT OF MOHALLA HAZIGANJ, P.S. MALSALAMI,PATNA CITY,DISTRICT PATNA ---- APPELLANT VERSUS THE STATE OF BIHAR ---- RESPONDENT ------ For the appellant : M/s Jay Kumar and Rashmi Kumari Mandilwar For the respondent : Mr. Binay Kumar Pandey, C.G.C. ------ P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ------- S.K.Sharma & Akhilesh Chandra,JJ. The sole appellant has preferred this appeal against the judgment of conviction and sentence dated 26.03.2007 and 30.03.2007 respectively passed by Ist Additional Sessions Judge, Muzaffarpur in Trial No. 72 of 2006 whereby he was found guilty under Sections 20(b)(II)C of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred to as “the NDPS Act”) and he has been convicted thereunder and has been sentenced to undergo rigorous imprisonment for 12 years. 2. The complainant Sanjiv Kumar (P.W.3) lodged a complaint to the extent that on 28.08.2005 he received an information that a truck bearing registration No. WB-03A/3791 2 along with occupant of the truck Sri Dev Nandan Rai is present near Kanti, Muzaffarpur at N.H.28. The custom officials formed a team. They proceeded and intercepted the said truck. The driver of the said truck namely, Dev Nandan Rai was there. The truck along with said driver was brought to the Customs Divisional Office, Imlichatti, Muzaffarpur in presence of two independent witnesses. During search of the driver, no objectionable substance was found from his person but from the search of the said truck, a cavity was found in which 81 Kgs. of ganja worth Rs.1,62,000/- was recovered. That cavity was in the ceiling of the cabin of the truck in the back side of the middle portion. The statement of the accused-appellant was recorded on 28.08.2005 before two independent witnesses wherein the accused confessed that the recovered ganja was purchased by him from one Md.Salim (not put on trial) and at his instance, goods (ganja) were loaded on the truck near Manokamna Mandir, Raxaul. The driver showed ignorance about the address and other antecedents of 3 Md.Salim. He further stated that ganja was to be carried upto Fatuha, Patna and it was to be handed over to Sri Pratap Rai(not put on trial), a resident of village Jethuli, P.S.Fatuha, Patna. He further confessed that he was doing this for gain of Rs.8,000/-. The recovered ganja and the truck were seized under Section 42 of the NDPS Act for violation of provisions of Section 8 of the NDPS Act. The said statement of the accused was recorded on 28.08.2005 by Superintendent (Prev.), Customs Division, Muzaffarpur under Section 67 of the NDPS Act. He was arrested on the reasonable belief that he is liable to punishment under Sections 20 and 23 of the NDPS Act for his conscious involvement in purchasing & carrying ganja recovered from the cavity made in the ceiling of the cabin of the truck which was subsequently seized on 28.08.2005 and on the following day accused was forwarded to judicial custody. Inquiry/Investigation was taken up. Sample of ganja was sent for chemical analysis to the Government Opium & Alkaloid Works Ltd.Gajipur and in the test report, it was confirmed that 4 seized goods was ganja. 3. The complaint (Ext.3) has resulted in the present case. 4. Cognizance under Sections 22 and 23 of NDPS Act was taken and thereafter trial court framed charge under Section 20(b)(II)C of the of the NDPS Act and the same was explained to the accused-appellant who pleaded innocence. So the trial proceeded. 5. The defence of the accused- appellant was that he was never caught with the seized goods, rather seizure was from another person who was let off and he has been falsely implicated. 6. In order to substantiate the charge, the prosecution has examined P.W.1 Shailesh Kumar Srivastava, Superintendent Customs, P.W.2 Shivendra Satyarthi, Inspector Customs, P.W.3 Sanjiv Kumar, Inspector Customs (the complainant), P.W.4 Lakshmi Choudhary, Inspector Customs, P.W.5 Ganesh Ram, Havildar, Customs, P.W.6 Sanjay Kumar Gupta, another Havildar Customs and P.W.8 Shyam Kumar, Electronic Mechanic. P.W.7 Shailesh Kumar Srivastava, Superintendent 5 Customs was examined as P.W.1 but subsequently, his evidence as P.W.1 was expunged and the deposition of witnesses were re-numbered. P.W.3 Lakshmi Choudhary has not supported the prosecution version in his cross-examination as he has failed to appear in court for further cross-examination. So his evidence stands expunged. 7. All the witnesses except P.W.3 (Lakshmi Chaudhary) have supported the factum of search and seizure on the date and time of occurrence and according to them, 81 Kgs. Of ganja was seized from the cavity of truck which was being driven by the accused- appellant. The identical evidences given by the official witnesses are of one tune and all of them have supported the prosecution case regarding search and seizure on the date of occurrence though there are slight variation with regard to time and other details of seizure. 8. Learned counsel appearing on behalf of the appellant has submitted that there is complete violation of mandatory provisions of the NDPS Act. According to 6 Section 50 of the NDPS Act, if a person is required to be searched, then that person without unnecessary delay has to be taken before Gazetted Officer of any of the departments or to the nearest Magistrate and that Magistrate has to record the reasons for such search. 9. Opposing the submission of the learned counsel for the appellant, learned counsel appearing for the other side has submitted that there was no violation of Section 50 of the NDPS Act because the accused-appellant had never showed his desire that he should be searched before a Magistrate or the Gazetted Officer. 10. Onus is not upon the accused. The position of law is settled that the person to be searched under the NDPS Act, is required to be told about his right under Section 50 of the NDPS Act before he is searched and that is a mandatory requirement. No presumption to that extent can be raised. This has been held in the case of C.Ali.Vrs.State of Kerala 2000 CRI.L.J.3181. In the present case, there is no evidence on 7 the record to show that the accused-appellant was informed about his above right. As such the mandatory requirement of Section 50 of NDPS Act was not complied in this case. Merely for the reason that accused did not make request for search in presence of Gazetted Officer or Magistrate, the mandatory requirement of Section 50 cannot be said to have been complied with. 11. Another important aspect of the case is with regard to sampling of the seized articles. According to complaint, seizure was of 13 packets of ganja. Report is that seized article was ganja but it was for the prosecution to prove that the sampling was from all the packets which were seized. Sampling taken from one packet and the report regarding that sampling cannot make presumption presumed that all the packets, which were seized, was ganja. There is no evidence at all in this case that the sampling was from each of the 13 packets. The onus is always upon the prosecution to prove that the search and seizure was in terms of procedure prescribed under the Code of 8 Criminal Procedure. The NDPS Act has adopted the procedure of search and seizure from Code of Criminal Procedure. In view of provisions of the NDPS Act it was incumbent upon the authorities, who were making seizure, that they should have taken the sample from each of the 13 packets and then only it could have been said that the seized articles contained in all the 13 packets were narcotic substance. In the present case, the chemical examination report (Ext.6) which has come from Government Opium and Alkaloid Works, Gazipur (U.P.) shows in description “Received one sealed envelope of sample from Inspector, Customs (P) Division, Muzaffapur vide letter No. C.No.VIII (10)78/CUS/sciz/Muz/O5.06/4137 dated 29.8.2005”. That sample was containing 20.560 grams. It appears that the sample which was sent for examination was in only one sealed envelope. The punishment of offence under NDPS Act varies upon quantum of recovery. There are two types of categories in which separate punishments have been prescribed. One is small quantity and 9 another is commercial quantity. The punishment in possession of narcotic substance varies in cases. Commercial quantity of ganja is for possession of 20 Kgs. and above. It was for the prosecution to prove that the seized articles for which samples were taken were under the category which can be said to be commercial quantity meaning thereby the quantity must be 20 kgs. Or its above. In the present case, the seized articles were kept in 13 bundles but the bundles were not separately weighed and it appears that proper method of taking samples were not followed. Sample taken from one bundle cannot be said to be covering samples for all the bundles. In that circumstances, in the present case it was difficult to presume that all the seized articles were commercial quantity of ganja for which charge was made. No doubt, there are certain presumptions in the offence relating to that but that presumption may be available only when it is prima facie established that the seized articles were the contraband articles or these are under different categories for 10 which different punishments have been provided. Due to lack of evidence it will be unsafe to upheld the order of conviction of the appellant. 12. Another important aspect of the case is that the sole witness of seizure has given different version with regard to seizure. He has supported the factum of seizure when he was examined in-chief but when he was cross-examined, then he has stated that he incidentally came to the Customs office where he saw the goods kept there. His version is in quite contrast to the version of official witnesses when they have stated that the seizure witnesses have accompanied them. This witness was not declared hostile and the prosecution has relied upon the testimony of this witness also. In view of contradiction in deposition of this witness, in our view, the seizure becomes doubtful. 13. In view of several lacuna in the prosecution version, it is difficult to presume that the appellant was found in possession of ganja involving commercial 11 quantity on the date and time for which he has been charged. Taking into consideration the above circumstances, we find some doubt regarding search, seizure and sampling in the prosecution version. Once doubt is created, then the benefit of that should be given to the accused. Accordingly, the accused- appellant deserves to be acquitted. 14. In the result, this appeal is allowed and judgment of conviction and sentence of the appellant is set aside. He is acquitted of the charge. The appellant, who is reported to be in custody, is directed to be released forthwith if not required in any other case. ( Shyam Kishore Sharma, J. ) ( Akhilesh Chandra, J.) Patna High Court,Patna Dated,the 25th March,2010 Tahir/-(NAFR)