CRIMINAL APPEAL No.11 OF 2009 (DB) Against the Judgment of conviction and order or sentence dated 23rd December, 2008 passed by Sri Shambhu Nath Singh, Ist Additional Sessions Judge, Saran in N.D.P.S. Case No. 2 of 2006 arising out of Chapra Town P.S. Case No. 77 of 2006. ******** 1. ASHOK SINGH SON OF LATE ARJUN SINGH 2. ASHA DEVI WIFE OF ASHOK SINGH BOTH RESIDENT OF VILLAGE- SALEMPUR, P.O.- SUTIHAR, P.S.- DERNI, DISTRICT- SARAN ………………………………APPELLANTS Versus STATE OF BIHAR …………………………………..……RESPONDENT ************* For the Appellants:- Mr. Kanhaiya Pd. Singh, Sr. Advocate Mr. Dr. Rajesh Kumar, Advocate Mrs. Jyotsana Shankar, Advocate Mr. Awadhesh Kr. Singh, Advocate For the State :- Mr. Ashwani Kr. Sinha, APP ******************** P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA Mridula Mishra & S. K. Sharma, JJ. The above named appellants have preferred the instant appeal against the judgment of conviction and order of sentence dated 23rd December, 2008 passed by the learned Ist Additional Sessions Judge, Saran in N.D.P.S. Case No. 02 of 2006 arising out of Chapra Town P.S. Case No. 77 of 2006 by which the appellants have been convicted under Sections 20 b (ii) C of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the Act) and they have been sentenced to undergo rigorous imprisonment for fifteen years and a fine of rupees one lac and fifty thousand each and in default of payment of fine, 2 rigorous imprisonment for eighteen months was directed. 2. The basis of the prosecution case is the written report submitted by PW 1 Jai Ram Sharma, Inspector cum Officer Incharge, Town Police Station, Chapra on 16.4.2006 alleging that on 16.4.2006 at about 11.30 AM he was in his office. At that very time a wireless massage indicated that a lady and a lame man were carrying two rexin bags containing Charas therein. This information resulted into constitution of a raiding party consisting of PW 1 Jai Ram Sharma, the driver- constable No. 770 Sanjay Kumar Singh (PW 4) and ASI Shankar Chaudhary (PW 3). When the aforesaid persons proceeded then information was passed to them that four persons arrived at the gate of the station. The informant along with the driver and ASI Shankar Chaudhary reached there and found that the appellants were standing near the two bags, out of which one is of red colour and other is of black colour. The informant asked about the bags from them on which they claimed their bags but denied to open the same. In the mean time many persons assembled there and the informant opened the bags in presence of several persons and found that both the bags were full of Charas in different packets. On querry they disclosed there names as Ashok Singh and Asha Devi. They disclosed that they were carrying it as a career of Amerika Rai and for carrying the same they have been offered rupees two thousand. The informant prepared the seizure list which was signed by Pintu Kumar (PW 3 5) and Tinku Kumar (PW 6). The case was registered and the investigation was taken up. After investigation the police found the substance of allegation to be correct and submitted chargesheet. After cognizance the substance of allegation was explained to the appellants to which they not pleaded guilty and claimed to be tried. 3. The defence of the appellants from the very beginning was that they were not associated with the seized articles rather they were by-standers and they have been roped in by the police only with a view to save the real culprits. 4. The learned Trial Court after considering the entire evidences available on record and taking into other facts and circumstances of the case, found the appellants guilty and sentenced them, as stated above. 5. We have to see whether the prosecution was able to prove the charge against the appellants beyond the shadow of all reasonable doubts or not. 6. In order to prove the case, the prosecution has examined altogether nine witnesses. They are Jai Ram Sharma, the Inspector –cum- Officer In Charge of Town Police Station, Chapra (PW 1), Ranjan Kumar Sinha the then Executive Magistrate (PW 2), Shankar Chauhdary S.I. of Police (PW 3), Sanjay Kumar Singh the driver (PW 4), Pintoo Kumar the seizure list witness (PW 5), Tinku Kumar, another seizure list witness (PW 6), Shiv Shankar Rajak, S. I. of Police (PW 7), Om Prakash 4 Tiwary, Constable (PW 8) and Ram Jatan Mishra (PW 9) was a formal witness. The report of Forensic Science Laboratory was exhibited (Ext. 5) subsequently. Through PW 9 the report of Forensic Science Laboratory was proved formally. 7. The most important witness of this case is the informant (PW 1) of this case. He has stated that on 2.4.2006, he was posted as Officer-In-Charge in the Town Police Station, Chapra. At that very time, he received information that a lady bearing pink coloured saree was present along with a lame man and they were carrying two air bags containing Charas. He also got information that they were trying to move somewhere else. This information was recorded in the Sanha Station Diary and he proceeded with his driver Sanjay Singh, Constable No. 770. On the way, the informant picked up PW 3 Shankar Chaudhary. The informant spotted the lady and a male, who were standing near the bags which was of the capacity of 20 kg. The persons disclosed their identity as Asha Devi and Ashok Singh and when the bags were searched, then Charas, kept in different packets of 500 Grams and 1000 Grams, was seized. The accused persons disclosed that they were carrying the bags at the behest of Amerika Rai. They also stated that they have been paid rupees two thousand for carrying the bags. The seizure list was prepared by Shiv Shankar Rajak (PW 7) which was signed by other witnesses. The seized articles were sealed there and the written report was prepared and the formal FIR was accordingly drawn 5 up. In cross-examination, this witness has supported the time and place of occurrence and he has stated that there was seizure of two bags. But this witness has not described as to from how many packets the samples were taken. 8. The Executive Magistrate (PW 2) has stated that he got information through the Officer in-charge (PW 1) that some persons were trying to carry Charas and PW 2 was called near the Kutchery Railway Station. The informant rushed there. The bags were opened in front of him. One bag was of red colour and another was of black colour. The red bag contained Charas in 7 packets of 1 kg. each and 32 packets of ½ Kg. each. Another bag, which was of black colour, contained Charas in 6 packets of 1 kg. each and 32 packets of ½ Kg. each. The seizure list (Ext. 4) was prepared there and a copy of the seizure list was handed over to the accused persons. This witness is an important witness of the seizure and he is a Gazetted Officer. In view of the mandatory provision of the Act, he has put his assistance to the seizure which was made from the accused persons. In cross- examination, he has stated about the seizure but he has also stated that his signature was not taken on the sealed packets. He has also stated that the seized articles were not weighed in his presence. 9. Sanjay Choudhary, Sub-Inspector of Police (PW 3) has stated about the seizure and has supported the version of PW 1 but when a specific question was put to him as to whether 6 any lady constable was present at the time of seizure or not, because if any search or seizure is to be made from a lady then there is a mandatory provision in the Code of Criminal Procedure that the search or seizure must be made from a lady by the lady constable, this witness has categorically stated that the seizure was not made in presence of a lady and no lady constable was there at the time of seizure which was made from a lady i.e. Asha Devi, the appellant no. 2. 10. Sanjay Kumar Singh, the Driver (PW 4) has stated that the seized article was brought to the police station and was sealed there. This witness has stated that the seized material was sealed at the police station. Other seizure witnesses, namely, PWs 5 and 6, who are the only independent seizure witnesses, have turned hostile and they have not supported the prosecution version regarding search and seizure. 11. Shiv Shankar Rajak, Sub-Inspector of Police (PW 7) is the Investigating Officer of this case. He has stated that seized article was sent for chemical examination to the Forensic Science Laboratory and after conclusion of investigation, charge sheet was submitted by him. 12. Om Prakash Tiwary (PW 8) is Constable, posted at Town Police Station, Chapra, who has brought the material exhibit before the Court (Material Exhibit 1). PW 9 is a formal witness. 13. Learned Senior Counsel appearing on behalf of the 7 appellants submitted that the procedures laid down in the Act have completely been violated. The provision of the Code of Criminal Procedure also applies with regard to seizure of Narcotic & Psychotropic Substance. Section 100 of the Cr.P.C. is the provision for search and seizure of the articles. There was no search in terms of provision of Section 100 of the Cr.P.C. because no evidence has come that before making search, the informant and other witnesses have given their own search. This mandatory provision has been given a complete go-bye and so search and seizure itself has become doubtful. It has also been submitted that there is no evidence at all that the appellants were in direct possession of the seized articles because the evidence at best has come that these appellants were present near the bags and no witness at all including the informant has stated that these appellants were even laying their hands on any part of the bags. So it has been submitted that the appellants were merely passers by and they have been suspected only because they were present near the bags. The consistent evidence is that the appellant no. 1 is a lame man and he cannot even walk without the assistance of walking sticks. So, on this basis, it has been argued that it was not possible for the appellant no. 1 to carry a bag over his shoulder because he himself cannot make his own movement. The place of seizure was a place which is accessible to all and it cannot be said that these appellants alone were present at the time of seizure. So, on 8 this basis, the seizure of articles from the possession of the appellants is doubtful. 14. Section 100 of the Cr.P.C. states that before making the search, the persons who are going to search should give their own search and this precaution has been added to exclude the possibility of interferences from outside and it is a precautionary measure. In the present case, though most of the witnesses are police personnel but none have stated that they have given their own search prior to the search of the appellants. It has also come in evidence that the search and seizure of a lady was made in absence of a lady constable and so on this ground also, it appears that the prosecution has not performed its part which should have been done in case of search and seizure. 15. Another important aspect of the case is the report of the Forensic Science Laboratory (Ext. 5). The seizure was made on 16.4.2006 and it was sent to the Laboratory through memo no. 274, dated 1.7.2006, which was after a lapse of about 2 and ½ months. The contents of the sent article have been noted in the report of Forensic Science Laboratory and it mentions “a sealed paper packet said to contain two sample of charas seized from accused”. The seizure list (Ext. 1) mentions that two bags- one red and one black colour were seized from which 7 packets of 1 kg. and 32 packets of 500 Grams whereas black colour bag contains 6 packet of 1 Kg. each and 32 packets of 500 Grams each and the total packets thus comes to 77 9 packets but no evidence at all has come that the samples were taken from each packets. The sentence under the Act varies according to the quantity of seized articles and sentence is not blanket rather if a person is found carrying the smaller quantity then the sentence is of lesser amount and similarly the sentence increases with the quantity of seizure of the contraband articles. The Act mandates that the sampling must be made form each packet. This provision is for the purpose of excluding the possibility of outside interferences. If the seizure was of 77 packets, then it was mandatory that the sample must have been taken from all 77 packets and these should have been sent separately for chemical examination but the report of Forensic Science Laboratory suggests that only two samples were forwarded to it for chemical examination. 16. Section 52 A sub Section 2 is being reproduced herein below: “52 A (2)- Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer in charge of the nearest police station or to the officer empowered under sec. 53, the officer referred to in sub-Section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their discretion, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or 10 psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred in sub-Section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.” 17. According to the provision of Section 52 A sub- Section 2 the precaution which were to be followed in case of certifying the correctness of inventory and taking photographs of such drugs or substance and allowing to draw the representative samples of such drugs and substance are prescribed. No witness has stated that the seizure was made in terms of the mandatory provisions of Sub-Section (a), (b) and (c) of Section 52 A (2). 18. Reliance has been placed by the learned counsel on various judgments reported in 2009 (12) SCC 161 (Union of India 11 Vs. Bal Mukund and Ors.), 2009 (16) SCC 293 (State of Rajasthan Vs. Bher Singh), 2005 (3) SCC 59 (State of Rajasthan vs. Gusmail Singh). It has been submitted that neither the provisions of Sections 52 nor 55 have been followed. So, the conviction and sentence becomes illegal and the Supreme Court has interfered in the aforesaid circumstances and has set aside the sentence of the accused persons. 19. The learned APP appearing on behalf of the State submitted that the procedures might be irregular but not illegal. 20. We have heard the submissions of the learned counsel appearing on behalf of the parties and perused the record. The seizure is not in terms of mandatory provisions of Section 100 Cr.P.C. and the sampling was also not done in accordance with the provisions of the Act and rules framed thereunder as the sampling must be made from the each packets but the report of the Forensic Science Laboratory shows that the sample was only from two packets which is in complete violation of the provisions of the Act. The prosecution has failed to prove the genuineness of seal of seized articles and also there is no evidence at all as to what has happened to the seal which was used for sealing the packets. The quantum of the seized contraband articles has also not been established because the samples of two packets out of 77 packets cannot make it a case that the seizure as alleged was made on the date and time of occurrence is of contraband articles. 12 21. Considering the violations of the mandatory provisions of the Act, we are of the view that the prosecution has not been able to prove its charge against these appellants beyond the shadow of all reasonable doubts. The provisions of the Act are very harsh and accordingly, the sentences are also very harsh. In the circumstances it is imperative that all the paraphernalia of search, seizure and sampling must be followed. 22. From the discussions made above, it is apparent that the prosecution has utterly failed to perform its duty in bringing home the evidences against these appellants. In the result, this appeal is allowed and the judgment of conviction and order of sentence against the appellants as stated above is set aside. The appellants are acquitted of the charges. They are reported to be in custody, they are directed to be released forth with if not wanted in any other case. (Mridula Mishra, J.) (Shyam Kishore Sharma, J.) Patna High Court, Patna Dated 20th September, 2010 Avin/N.A.F.R.