1 1 Criminal Appeal (DB) No.825 OF 2008 With Criminal Appeal (DB) No.889 of 2008 ------- Against the judgment of conviction dated 26.05.2008 and order of sentence dated 29.05.2008 passed by Sri D.N.Pandey D.N.Pandey, Vth Additional Sessions Judge, Muzaffarpur in D.R.I.No. 12 of 2004/Tr.No.7 of 2008. ------ DINESH SINGH SON OF AZAD SINGH, RESIDENT OF VILLAGE BAMNAULI,POLICE STATION & TAHSIL BAHADURGARH,DISTRICT JHAJJAR (HARYANA) ------ ------ APPELLANT (in Cr.App.(DB) No. 825 of 2008) AND GAME SINGH SON OF SRI AJEET SINGH,RESIDENT OF VILLAGE BAMNAULI,P.S.BAHADURGARH,DISTRICT JHAJJAR, HARAYANA -------- APPELLANT (in Cr.App.(DB) No.889 of 2008) VERSUS THE UNION OF INDIA -------- RESPONDENT (in both the appeals) For the appellant : M/s.Baxi SRP Sinha,Sr.Advocate, in Cr.App.No.825 Bibhakar Tiwary and Satyapal Narotham of 2008(DB). ------- For the appellant in : M/s Yogesh Chandra Verma,Sr.Advocate Cr.App.No. 889 of Awanish Nandan Singh and Kumar 2008(DB) Kaushik ------ For Union of India : Mr.Kumar Priya Ranjan, C.G.C. (in both the appeals) ------- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE RAJENDRA KUMAR MISHRA ------ S.K.Sharma & R.K.Mishra,JJ. Both Cr.Appeal (DB) No. 825 of 2008 filed on behalf of Dinesh Singh and Cr.Appeal (DB) No. 889 of 2008 filed on behalf of Game Singh have arisen out of a judgment of conviction dated 26.05.2008 and order of sentence dated 29.05.2008 passed by Vth Additional Sessions Judge, Muzaffarpur in D.R.I. 12 of 2004/Tr.No.7 of 2008 whereby both the 2 2 appellants were convicted under Section 23 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred to as “the Act”) directing each of the appellants to undergo rigorous imprisonment for 15 years and a fine of Rs.1,50,000/-to each and in default in payment of fine, to undergo rigorous imprisonment for two years further. 2. The case has been initiated on the basis of a complaint of complainant R.K.Srivastava, I.O. D.R.I. Muzaffarpur (P.W.3) in the capacity of being public a servant. The complainant on the basis of confidential information intercepted a truck being registration No. HR-63/4778 in the wee hours on 8th July, 2004 at about 3.30 A.M. near Motipur, Muzaffarpur. Khalasi of the truck Game Singh was caught at the spot while the driver succeeded in vanishing in garb of darkness. The truck was brought to D.R.I. Office and it was searched on 8.7.2004 itself in presence of independent witnesses and Khalasi. 540 packets of Hashish (charas) wrapped in plastic were recovered from specially designed cavity made in the hood of the truck. The seized 540 packets of hashish was 3 3 found 540 Kgs. The seized Hashish and the truck in question was seized under Section 42(i)(c) of the Act on reasonable belief that these were liable for confiscation under Sections 16(i) and 60 (3) of the Act. Voluntary statement of Game Singh was recorded in presence of independent witnesses in which he confessed his guilt of carrying hashish from Nepal in specially constructed cavity and he further stated that the truck at that time was being driven by driver Dinesh Singh son of Azad Singh , resident of village Bamnauli, P.S. Bahadurgarh,District Jhajjar (Haryana). Khalasi Game Singh further disclosed that hashish was being carried from Narainghat (Nepal) to Haryana on the direction of the owner of the truck Ramesh Jee. Game Singh was arrested under Section 42 (i)(d) of the Act, 1985 on 8.7.2004 and seized Hashish was sent to Govt. Laboratory, New Delhi for chemical examination and the Chemical Examiner vide his report F.No.1/N.D./R/204,CLD-205(N) dt. 5/11/04 opined that the seized article was charas. The address of the truck owner could not be verified as it was reported that no such person namely, Ramesh Jee resides as per address 4 4 given by the Khalasi Game Singh. Driver of the truck Dinesh Singh was found to be inexistence but did not appear. Subsequently, a petition for issuance of non-bailable warrant of arrest was filed and non-bailable warrant was issued against Dinesh Singh and he was arrested. Complaint (Ext.7) is the basis of prosecution case. Cognizance was taken against both the accused under Sections 22, 23 and 25 of the Act. 3. In order to prove its case, complainant examined Rakesh Ranjan as P.W.1, Indradeo as P.W.2., R.K.Srivastava as P.W.3, the complainant himself before charge. They were cross-examined before charge and lastly, they were discharged. The accused persons were charged for offence under Section 23 of the Act to which they pleaded innocence and preferred to face the trial. 4. The witnesses examined earlier were cross-examined by the defence after charge. The complainant was further examined. Other witnesses namely, P.W.4 Kamal Singh, P.W.5 Deepak Kumar and P.W.6 Jainul Haque were examined after charge and they were discharged after cross-examination by the defence. P.W.6 is 5 5 the independent witness and he is a witness of seizure and rest witnesses are the persons who had taken part in raid and conducting the search. 5. Seizure list has been marked as Ext.1, Panchnama as Ext.2, Recovery Memo as Ext.3, Confessional Statement of accused Game Singh as Ext.4, report of Chemical Examiner as Ext.5, Envelope containing test report as Ext.6, Complaint petition as Ext.7. Signatures of witness Zainul Haque on seizure list, recovery memo, panchnama and confessional statement of Game Singh have been marked as Exts. 8 to 8/3. After recording the evidence of the witnesses, the statements of the accused were taken under Section 313 of the Code of Criminal Procedure. 6. The court below after considering the evidences found both the accused guilty under Section 23 of the Act and they were convicted and sentenced as noted above. Both the convicts preferred appeal separately. 7. We have to see whether the prosecution has been able to prove the charge beyond the shadow of all reasonable doubts. 8. P.W.3 R.K.Srivastava is the most 6 6 important witness of the case as he is the complainant. On 8.7.2004, he was posted as Officer in D.R.I. Muzaffarpur. At 3.30 A.M. near Panapur a truck being its registration No. HR- 63/4778 was intercepted. The driver jumped from the truck and succeeded in escaping. Khalasi was nabbed and he disclosed his name as Game Singh and the name of driver who escaped as Dinesh Singh. The said truck in presence of two independent witnesses Prabhat Kumar and Zainul Haque (P.W.6) were seized and was brought to D.R.I. office, Muzaffarpur where at 6.30 A.M. search of the truck was made and from specially designed cavity made in the hood of the truck 540 packets weighing 1 Kg. each packet were seized. Three samples each of 50 grams were taken and were sealed. On the samples, the signatures of the accused as well as witnesses were taken. The said samples were sent for chemical examination to New Delhi. Panchnama was prepared by Surendra Kumar (not examined). It was in three pages. By the order of the Court, accused Dinesh Singh was brought from Delhi. Chemical report was received. The Chemical Examiner certified that the seized 7 7 article was Hashish (charas). In cross- examination, this witness has stated that there was no report of any bad antecedent of accused Game Singh and Dinesh Singh. 9. P.W.4 Kamal Singh was a head havildar who has stated about seizure of 540 Kgs. of charas. This witness was present throughout the occurrence and according to him, the seizure was made in his presence and sample was taken from one packet. This witness in paragraph 4 of his cross-examination has reiterated his earlier version that sample was taken from one packet. P.W.5 in paragraph 10 of his cross-examination has stated that the samples were kept in three packets which were taken from different packets. This witness has stated that he was present throughout the occurrence but this witness has also stated that the seized article was not weighed in his presence but in another paragraph he has stated that each packet was weighed separately. P.W.6 is a seizure list witness and in his cross- examination he has stated that sample was taken from 2 to 4 packets but this witness has stated that the packets were not weighed in his 8 8 presence. 10. On behalf of appellant Dinesh Singh it has been submitted that he was having enmity with accused Game Singh and on the basis of a letter written by Karan Singh, a co-villager, to Delhi police, he was ordered to be produced in the case. P.W.3 in paragraph 16 has admitted that a letter and a wireless message sent by the S.P. Delhi was received by which it was informed that accused Dinesh Singh is wanted in D.R.I. Case No.12 of 2004. Thereafter production warrant was issued against accused Dinesh Singh. It has also been submitted that his prosecution is solely on the basis of confession of another accused Game Singh because Game Singh in his confession has named this petitioner as driver of the truck but in the same paragraph of his confession he has stated that the vehicle was owned by Ramesh Jee son of Sri Mange Ram, resident of village Ashauda, P.S. and Tahsil Bahadurgarh, District Jhajjar (Haryana). Accused Game Singh has also confessed that he was carrying this work at the dictate of owner of the truck Ramesh Jee. It has come in evidence that the prosecution tried to locate whereabouts 9 9 of owner of the truck but no such person was found to be in existence. It has been argued that on such sketchy evidence Ganesh Singh has been roped in. Further submission is that Dinesh Singh was all through present in course of trial but not even one witness has stated that he has identified this accused. His implication is solely on the basis of confessional statement of co-accused Game Singh but so far as it relates to the owner of the truck, the prosecution has not relied upon his confession. 11. In our view, the confession of Game Singh was found to be incorrect so far as naming of the owner of the truck Ramesh Jee. Game Singh in his confession has stated that he was carrying the contraband article at the dictate of the owner of the truck whose details have been given. The details included parentage and locality of the owner of the truck but when the prosecution authorities tried to locate the truck owner, then it was found to be of a person who was not in existence. Hence, so far confession of appellant Game Singh implicating others is concerned, the same should have been doubted specially in view of the fact that 10 10 significant part of his confession has been found to be incorrect. So the confession of Game Singh has remained doubtful and on the basis of only confession, Dinesh Singh has been roped in. There is no corroboration at all of the confessional statement of Game Singh so far it relates to implication of Dinesh Singh. As such the confession of Dinesh Singh relating to implication of Dinesh Singh becomes doubtful. Once the doubt is created in the prosecution version, then the benefit of the same will go to the accused. As such appellant Dinesh Singh deserves to be acquitted. 12. Another appellant Game Singh was caught at the spot. The case of the prosecution is that P.W.1, P.W.3, P.W.5 and P.W.6 have supported the seizure and recovery of 540 Kgs. of hashish from the truck bearing registration No. HR-63/4778 on 8.7.2004 and there is consistent evidence that the interception was near Panapur, Muzaffarpur. Search was made after the truck was brought to D.R.I.office. 540 kgs. of charas was seized. The samples were taken which on examination was found to be Hashish as reported in Ext.5. 11 11 13. P.W.1 in paragraph 11 has stated that the seizure list was prepared in presence of independent witnesses and Official witnesses and it was prepared by P.W.3 which has been marked as Ext.1. 14. Learned counsel appearing for the appellant Game Singh has submitted that the place of seizure has been shown to be Muzaffarpur and there is no explanation as to why the truck intercepted at National Highway near Panapur was not searched rather it was brought to office of D.R.I. and search was made on next day. It has also been submitted that only with a view to get some financial benefits, the prosecution party has implicated the appellants because there is admission that the persons who intercepted the truck with contraband articles are financially rewarded. Further argument is that the evidence regarding sampling is very vague and the procedure adopted is not inconsonance with law rather different version regarding sampling has come. P.W.5 has stated in paragraph 10 of his evidence that the sample was prepared in 2-3 packets and it was taken from several packets. P.W.6 has stated in 12 12 paragraph 9 of his evidence that the sample was taken from 2-3 packets. P.W.4 was present at the time of seizure and according to him sample was taken from only one packet. This evidence has come in paragraph 3 of P.W.4. P.W.3 has stated in paragraph 1 of his evidence that three samples weighing 50 grams each were prepared but he does not say from how many packets it was taken. The prosecution case is that 540 packets were seized and each packet was of one kg. So far as the sample taken for examination is concerned, it has come that it was taken either from one, two or three packets. There is no evidence of any of the prosecution witnesses that sample was taken from all packets. The sample was sent for chemical examination and report of the examiner is that the sent article was hashish. According to test memo it appears that one packet of Hashish weighing 50 grams was sent for chemical examination. Under the provision of the Act, punishment varies upon the quantity of the seized contraband article. The prosecution alleges that the seizure was 540 kgs. of hashish, then it was incumbent upon the prosecution to prove beyond the reasonable doubt 13 13 that seized packets contained contraband articles and sample from all packets were taken. Either the sample was taken from all packets separately or these to be merged together so that representative samples could be taken. This is not the case of the prosecution that representative sample was taken or samples were taken from each packet. On the basis of suspicion, it cannot be held that all packets which were seized contained Hashish or charas. The evidence is to the effect that sample from one, two or three packets were taken and the witnesses are inconsistent. The only consistency is that the sample was taken and if harmonious reading is given to the depositions, then it appears that prosecution has been able to prove at best that the sample from one packet of Hashish was taken. So it can only be held that sample was taken from one packet and the packet’s weight was 1 kg. This is the case which has been proved by the prosecution. 15. Punishment for violation of the provisions of the Act depends upon the quantum of seizure. It has come in evidence that weight of each packet was 1 kg. There is a table in the 14 14 Act which prescribes the quantum of small quantity and commercial quantity. Charas/Hashish finds at serial no.23 of the Table and commercial quantity of this article is 1 kg. and above. In the present case, the prosecution has been able to prove only that the recovery was of one packet and packet contained weight of 1 kg. Therefore, the recovered article cannot be held to be commercial quantity. As discussed above, the prosecution failed to prove that the entire packets contained charas but the prosecution has been able to prove that one packet contained charas. For sentence under Section 23 of the Act, the punishment is six months with fine if a person is involved in carrying small quantity of contraband articles and punishment is upto 10 years with fine upto one lakh if the contraband involves quantity lesser than commercial quantity and for commercial quantity, the sentence is not less than 10 years which may go upto 20 years and fine of one lakh to two lakh. 16. In the present case, the prosecution has been able to prove that Game Singh was in possession of at least one packet of 15 15 Hashish/charas and the packet of contraband must be less than 1 kg. which will come under Section 23 (b) of the Act. Considering this, it is held that the prosecution has been able to prove that Game Singh was involved in carrying contraband article i.e. hashish/charas involving the quantity less than commercial quantity and more than small quantity. So the conviction is converted into Section 23(b) of the Act and sentence is modified to the period of already undergone by him during trial and up till now which is since 8.07.2004 and that will be sufficient for ends of justice and in view of substantive sentence already undergone by him, he is not required to pay fine. 17. In the result, Cr.Appeal (DB) No. 825 of 2008 is allowed and the conviction and sentence of appellant Dinesh Singh is set aside. He is acquitted of the charge. Since Dinesh Singh is reported to be in custody, he is directed to be released forthwith if not required in any other case. Cr.Appeal (DB) No. 889 of 2008 is dismissed with modification in conviction and sentence as mentioned above. Since the sentence of appellant Game Singh has 16 16 been reduced to the period already undergone by him, he is also directed to be released forthwith if not required in any other case. Patna High Court,Patna The 24th June, 2011 Tahir/-(NAFR) ( Shyam Kishore Sharma, J. ) ( Rajendra Kumar Mishra, J.)