Criminal Appeal (S.J.) No. 321 0f 1997 (Appeal against the Judgment and Order dated 1.12.1997 passed by the District & Sessions Judge-Special Judge, Buxar, in N.D.P.S. Act Case No. 9 of 1993.) ------------ 1. SURENDRA SINGH 2. SURAJ MAL YADAV BOTH SONS OF RUPAN SINGH YADAV, RESIDENT OF CIVIL LINES, P.S. BUXAR TOWN, DISTT. BUXAR. ------- APPELLANTS. Versus THE STATE OF BIHAR ------- RESPONDENT. -------- For the Appellant : Mr. Sumant Singh, Adv. For the State : Mr. Choubey Jawahar, A.P.P. -------- P R E S E N T THE HON’BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The Appellants have been convicted under Section 20(b) (i) of the N.D.P.S. Act, 1985 and sentenced to rigorous imprisonment for four years by the District & Sessions Judge-Cum- Special Judge, Buxar, in N.D.P.S. Act Case No. 9 of 1993. 2. The case of the prosecution according to PW-2 Om Prakash Gupta, who was the District Opium Officer, Faizabad, is that on 26.7.1993, Sridhnath Choudhary, Kamlesh Choudhary and Murli Choudhary were arrested, who confessed before him that they used to purchase Ganja from Surendra Singh Yadav. On this information, PW-2 constituted a raiding party and searched the house of Appellant No. 1 Surendra Singh Yadav. When he went inside the house, he did not find Surendra Singh Yadav but Suraj Mal Yadav, his brother was present in the house but told them that Appellant Surendra Yadav was not there. The house was searched in the presence of Appellant Suraj Mal Yadav and from two secret Chambers, they recovered fertilizer Patna High Court CR. APP (SJ) No.321 of 1997 dt.20-07-2011 2 bag containing Ganja in a plastic pack. The total weight of the Ganja was 126 Kgs. Samples of Ganja were taken and kept in small tin containers and sent for testing and the report was received on 2.8.1993 stating therein that the samples tested shows presence of Ganja. 3. During trial, the prosecution examined eight witnesses out of whom PW-1 Amol Kumar Chaturvedi is a formal witness who had signed on the seizure list, but stated that the same had been done at the Police Station. PW-2 Om Prakash Gupta is informant of the case. He stated that on 26.7.1993 one Sridhnath Choudhary disclosed that Appellant Surendra Singh Yadav had sold Ganja to him. At this information on 27.7.1983, he along with local Police surrounded the house of Surendra Singh and searched it. However, the Appellant Surendra Singh was not found in the house instead Appellant Suraj Mal was found present there. He disclosed that Appellant Surendra Singh had gone somewhere. In the presence of Appellant Suraj Mal Yadav, a search of the house was conducted and from inside a Chambers of a room, Ganja to the weight of 126 Kg. was recovered. Samples were taken from each packet and then the Fardbeyan was written. Suraj Mal Yadav was also arrested by him. There is nothing in his cross-examination to discredit his evidence given in the examination-in-chief. PW-3 Krishna Mohan Dubey was one of the members of the raiding party who supported the fact that along with PW-2 he had participated in the search of the house of Appellant Surendra Singh and from his house from a secret Chambers, plastic pack of Ganja had been recovered. He also supports the fact that the same were taken for testing. From his cross- examination, there is nothing which would lie in favour of the Appellants. PW-4 Dasrath Singh Yadav also supports the fact that a Patna High Court CR. APP (SJ) No.321 of 1997 dt.20-07-2011 3 raiding party had been constituted at the instance of PW-2 Om Prakash Gupta and search of the house of Appellant Surendra Singh was conducted and Ganja was recovered from the same. PW-5 Raja Ram one of the members of the raiding party has been tendered by the prosecution. He was recalled for examination and then he proved the statement of Sridhnath Choudhary and the documents pertaining to the case instituted on the statement of Sridhnath Choudhary. PW-6 Birendra Singh Yadav is a formal witness who identified the signature on the Fardbeyan. PW-7 Rajesh Kumar Sinha is the Investigating Officer and is more or less formal in nature. However, when he was recalled he exhibited the seizure list on which was signature of Appellant Suraj Mal Yadav. He also produced five packets of Ganja which was displayed in presence of the Lawyer of both the parties on which was the signature of Suraj Mal Yadav. The same was Exhibited as material Exhibits 1 to ¼. PW-8 Surendra Bahadur Singh is a formal witness and has proved the chemical examination report. 4. On behalf of the Appellants, a serious dispute has been raised that in fact, the recovery was not made from the house of Appellant Surendra Singh and there is no cogent proof that the house in fact, belong to the Appellant Surendra Singh. The further contention is that the Informant has violated the Provision of Section 42 of N.D.P.S. Act since he has not recorded as to how he had a reasonable belief that the Appellants were indulging in the activity of sale and purchase of Ganja. The further contention is that it was the prosecution case that 50 gram of Ganja had been sent for chemical examination but the F.S.L. report shows receipt of only 44.50 grams of Ganja and, therefore a reasonable doubt is cast as to whether the samples belong to the present case. The Appellants also submits that there is no documentary proof that Section 52(a) and 55 N.D.P.S. Act Patna High Court CR. APP (SJ) No.321 of 1997 dt.20-07-2011 4 by which the incriminating article is to be deposited before the Police Officer, has been followed. The further contention is that none of the exhibits are true copy and in fact, they are photocopies of the original. 5. With regard to the first contention, it has to be rejected for the simple reason that Appellant Suraj Mal Yadav signed on the documents pertaining to the recovery of Ganja wherein it was mentioned that the place was the house of Surendra Singh Yadav. Further Exhibit-4 which is the map prepared of the house and location of the recovered article demonstrates clearly that the house belongs to Appellant Surendra Singh Yadav, and, therefore, this fact cannot be disputed at this stage. 6. As for the next contention that the Informant has not stated as to how he had a reasonable belief that the Appellants were indulging in the activity of sale and purchase of Ganja is also off the record since in the very opening lines of the First Information Report, it has been stated that one Sridhnath Choudhary had disclosed that the Appellant Surendra Singh Yadav had sold him the Ganja which was recovered from his possession. Obviously satisfaction is evident from such a statement. Now to consider the next contention that there is disparity in the amount of samples allegedly sent by the Informant for testing at F.S.L. and one that was received at their end. It is well known that the Ganja has the potency of loosing weight in course of time on account of loss of moisture and, therefore, that contention also has to be necessarily rejected. 7. With regard to the photocopies of exhibits, there is no doubt that some of the exhibits are photocopies of the original but the ones, that this Court has relied up on, are the first copies and, therefore, this contention also has no merit. Patna High Court CR. APP (SJ) No.321 of 1997 dt.20-07-2011 5 8. As per contention that there is no documentary proof as to where the alleged Ganja was deposited after its seizure which was a violation of Section 52 and 55 N.D.P.S. Act. Since PW-2 had stated that he had deposited the Ganja with the local Police after the same was received, in my understanding, there would be no further requirement of producing any document in regard to this fact. Also the evidence of PW-7 Rakesh Kumar Sinha is relevant sine he had produced the material Exhibits on recall, evidently from the Police Station premises. 8. Considering the nature of evidence adduced on behalf of the prosecution, there is no manner of doubt that in fact, Ganja was recovered from the house of one Surendra Prasad Yadav in the presence of Appellant No. 2, and, therefore, finding no merit in the Appeal, the same is dismissed. 9. However, considering that the Appellant No. 1 Surendra Singh Yadav was not present when the recovery was made and he has remained in custody for sometime as also that Appellant No. 2 in whose presence, the Ganja was recovered has remained in custody for about two and half years, the sentence is modified to the period already undergone by them during trial. 10. The Appeal is dismissed with the aforesaid modification in sentence. (Anjana Prakash, J.) Patna High Court, Patna Dated, the 20th July, 2011. NAFR/S.ALI.