CRIMINAL APPEAL No.576 OF 2009 (DB) Against the judgment of conviction and order of sentence dated 2nd May, 2009 and 5th May, 2009 respectively passed in Jandaha P.S. Case No. 112 of 2006 by Sri Prem Chandra Gupta, Ist Additional Sessions Judge, Vaishali at Hajipur. ****** JALE ALAM SON OF ALIYAS MIAN, R/O VILLAGE- RAJAUTA, P.S.- RAXAUL, DISTRICT- MOTIHARI …………………………………….APPELLANT Versus STATE OF BIHAR …………………………………….RESPONDENT *********** For the Appellant :- Mr. Rakesh Kumar Soni, Advocate For the State :- Mr. Ashwini Kumar Sinha, APP **************** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD S. K. Sharma & Gopal Prasad, JJ. The sole appellant Jale Alam has preferred this appeal against the judgment of conviction and order of sentence dated 2.5.1009 and 5.5.2009 respectively passed in Jandaha P. S. Case No. 112 of 2006 by the learned Ist Additional Sessions Judge, Vaishali at Hajipur whereby the appellant has been found guilty under Sections 20 (b) (ii) (c) & 23 ( C ) of the Narcotics Drugs and Psychotropic Substance Act (hereinafter referred to as the Act) and he has been sentenced under Sections 20 (b) (ii) (c) of the Act to undergo rigorous imprisonment for 12 years and a fine of Rs. 1,00,000/- and in default of payment of fine further he has to undergo rigorous imprisonment of one year. No separate sentence has been awarded under Section 23 ( C) of the Act. 2. The brief facts, necessary for the disposal of this 2 appeal is relating to an occurrence of the afternoon of 3rd November, 2006. On that date at about 1.30 P.M. the informant and other police personnel spotted a jeep bearing No. BHD 3437 going towards Samastipur. On suspicion it was chased. The jeep dashed with the stairs of the godown of one Sogarth Sah of village Arania and thereafter, the accused was caught. The accused has disclosed the name of others also who were succeeded in escaping as Guddu Mian and Munna Pandey. Two quintals of Ganja was recovered from the back seat of the jeep. The case was registered as Jandaha P.S. Case No. 112 of 2006 on 3.11.2006 under Sections 20, 22 and 23 of the Act. After investigation Chargesheet was submitted and cognizance was taken. The charges were framed and explained to the appellant to which he pleaded not guilty and claimed to be tried. 3. In support of the charges the prosecution has examined 12 witnesses. They were Ram Pravesh Rai the informant (PW 1), Biushundeo Singh (PW 2), Nitesh Chaudhary (PW 3), Rameshwar Sah (PW 4), Birju Chaudhary (PW 5), Jogendra Singh (PW 6), Gayasuddin (PW 7), Md. Ekram (PW 8), Bipin Kumar Singh (PW 9), Dafadar Tripurari Chaudhary (PW 10), Dafadar Gopal Singh (PW 11) and the Investigating officer Birendra Yadav (PW 12). Besides the oral evidence the prosecution has exhibited signature of informant Ram Pravesh Rai on fardbeyan (Ext. 1), signatures of Nitesh Kumar Chaudhary and Rameshwar Sah on seizure lsit (Exts. 2 & 2/1), fardbeyan (Ext.3), seizure list (Ext. 3/1) and FIR (Ext. 3/2). At the trial stage the report of Forensic Science 3 Laboratory, Patna regarding chemical examination of the seized article was not available. The same has been received at the appellate stage where the same was exhibited as Exhibit-4. 4. The trial Court after considering the entire evidences available and other materials available on record, found the appellant guilty and sentenced his, as stated above. 5. This Court has to see whether the prosecution was able to prove the charge against the appellant beyond the shadow of all reasonable doubts or not. 6. The fardbeyan of the informant was recorded on 2.30.P.M. on 3.11.2006 at village Arania in which he stated that he had come for repairing of the puncture of stepny of the jeep along with Dafadar Gopal Singh (PW 11) and Dafadar Tripurari Chaudhary (PW 10). At about 1.30 P.M. the informant saw a jeep escaping towards east which was covered from behind. On suspicion it was chased. The driver of the jeep tried to escape along with the jeep but he could not succeed in escaping and the jeep dashed with the stairs of the Godown of Sogarath Sah as a result thereof the jeep had to stop. The driver and two others started escaping but one of them, the appellant, was apprehended. He told the name of two others who succeeded in escaping. The persons who escaped were said to be Guddu Mian and Munna Pandey. The apprehended accused disclosed that the jeep was carrying Ganja containing in 32 packets. Accused further stated that the Ganja was being carried towards Samastipur. In presence of Nitesh Kumar Chaudhary (PW 3) and Rameshwar Sah (PW 4) the packets 4 were seized. 7. In the present case PW 2, seizure list witness, has not supported the prosecution case and he has been declared hostile. 8. PW 3 is Nitesh Chaudahry who is the seizure list witness and identified his signature but in cross-examination he has stated that the signature was taken on plain paper. PW 4 has identified his signature but he has also stated that nothing was seized in his presence. PWs 5, 6, 7, 8 and 9 were declared hostile because they have not supported any part of the charge. 9. PW 10 is the FIR witness and according to the fardbeyan, he has chased the jeep which was allegedly carrying Ganja. He has stated that on 3.11.2006 at about 1.30 P.M. he was going by police jeep for repairing Puncture of tyre. One jeep bearing registration no. BHD 3437 tried to escape at the sight of the police jeep. Therefore, Jeep No. BHD 3437 was chased but that jeep dashed with the stairs of Sogarath Sah. So it had to stop. Three persons tried to escape out of whom one was caught and that person was the appellant. He told that the persons who succeeded in escaping are Guddu Mian and Munna Pandey. Two quintals of Ganja containing in 32 packets were seized and seizure list was prepared. In cross-examination he has stated that the seized packets were separately weighed but the seizure list does not mention the quantity of separate packets. 10. PW 11 is the Investigating Officer. This witness has supported the version of the informant and other seizure witnesses. 5 This witness has supported the factum of seizure of Ganja. 11. Learned counsel for the appellant has argued that the seizure list witnesses have not supported the prosecution case rather they have stated that nothing was seized in their presence so on this score alone the seizure of Ganja has not been proved. On the other hand the learned counsel for the State submitted that the seizure list witnesses have admitted that their signatures were present on the seizure list and once they admit their signatures then the inference is that it was a valid seizure in which they have participated and they have put their signatures. Learned counsel for the State placed reliance on a decision reported in (2006) 2 SCC (Cri) 444 (Surender Singh Versus State of Haryana). 12. No doubt seizure list witnesses have stated that the seizure was not in their presence but their signatures are there and they have admitted that the seizure list contains their signature. So the seizure in their presence has been established beyond all reasonable doubts. 13. Learned counsel for the appellant submitted that PW 1 in paragraph 5 has stated that out of 32 seized packets only one was opened by the Officer In Charge. It has been stated by PW 1 in paragraph 5 of his evidence that „‟DAROGAJEE GANJA KA KEWAL EK PACKET KHOLA THA” (Officer Incharge has opened only one packet of Ganja)”. On this basis it has been argued that out of 32 alleged packets the evidence has come that only one packet was containing Ganja so this is incorrect to say that the accused namely, the appellant was carrying Ganja of commercial 6 quantity which must be of 20 Kg. or more. Though the charge against the accused was of carrying two quintals of Ganja but in view of the evidence of PW 1, at best it can be presumed that the Ganja contained in only one packet which is not the commercial quantity. 14. Learned counsel for the State has fairly submitted that only evidence available on the record is that one packet of Ganja was seized and he submits that in view of the specific evidence it cannot be held that all the packets were containing Ganja. 15. Though at the trial stage the report of the Forensic Science Laboratory was not on the record but the same was made available at the appellate stage and the same was marked as Exhibit-4 by way of additional evidence. According to the report, the sample was of dry-brown flowering and fruiting vegetable substances contained in the paper envelope described above was found to be Ganja containing Tetra Hydro Cannabinol (T.H.C.) as chief intoxicating ingredient. 16. We have heard submissions of the learned counsel for the appellant and the learned counsel for the State. No doubt the prosecution has been able to prove that the seizure of Ganja was made but evidence is only to the extent that only one packet out of 32 packets was opened and there is no evidence at all that sample of all the packets were taken rather from the report of the Forensic Science Laboratory it appears that the Forensic Science Laboratory has received “a sealed paper envelope”. The report of 7 the Forensic Science Laboratory shows that the sample is contained in only one envelope. It is also not the evidence that all the 32 packets were opened and those were mixed-up and the sample sent was mixture of all 32 seized packets. Not even one witness has stated that seized 32 packets were opened and their contents were mixed up and a sample was taken. Rather to the contrary the evidence is only to the extent that only one packet was opened. The oral evidence of the witnesses finds support from the report of the Forensic Science Laboratory which also states that it has received only one envelope. Therefore, the prosecution has not been able to prove that the sent materials contained the mixed sample of all the 32 packets rather the evidence is that the sent sample was of only one packet. The punishment under the Act varies according to the quantity. The prosecution has not taken care to see that samples of all the packets are taken so that it could prove its case and charge that the seizure was of more than 20 kg. of Ganja and sample was taken from the heterogeneous mixture of the packets which was seized. 17. In view of the lack of application of the proper procedure regarding sampling, it cannot be said that the seizure made from the appellant, which was chemically examined, was of commercial quantity. Though the prosecution has been able to prove the charge that on the date and time of occurrence the appellant was in possession of Ganaj but it has not been proved that the same was of commercial quantity. If all the packets of Ganja were of identical weight and two quintals were divided by 32 8 packets then also it comes up to 7 Kg per packet which is less than the commercial quantity. 18. Considering the discussions made above, benefit of doubt regarding quantum of quantity goes in favour of the appellant to the extent that on the date and time of occurrence the seizure of Ganja was made from his possession but it was not of commercial quantity. Hence we are of the opinion that the prosecution has been able to prove the charge that the appellant was in possession of Ganja on the date and time of occurrence and the charge regarding dealing of commercial quantity of Ganja was not proved. In that view of the matter, the sentence awarded to the appellant is modified and it is accordingly modified to Section 20 (b) (ii) (b) and 23 (b) of the Act in place of under Section 20 (b) (ii) (c) & 23 ( c ) of the Act. With regard to fine awarded to the appellant it is modified to the extent that he will have to deposit Rs. 25,000/- by way of fine and in default of payment of fine he will have to undergo rigorous imprisonment for six months. 19. With the aforesaid modification in the sentence, this appeal is dismissed. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.) Patna High Court, Patna Dated 13th April, 2010 Avin/N.A.F.R.