CRIMINAL APPEAL No.757 OF 2007 (Against the judgment of conviction and order of sentence dated 23.7.2007/27.07.2007 of the 1st Additional Sessions Judge, Sitamarhi passed in Trial No. 4 of 2007) SATYENDRA KUMAR @ SATYENDRA KUMAR PANDIT--------(Appellant) Versus STATE OF BIHAR---------------------------------------------(Respondent) For the appellant: Mr. Vinod Kumar, Adv. For the State: Mr. Ajay Mishra, A.P.P. ----------------- P R E S E N T THE HON'BLE MR. JUSTICE C.M.PRASAD C.M. Prasad, J. This appeal is against the judgment of conviction and order of sentence dated 23.7.2007/27.07.2007 of the 1st Additional Sessions Judge, Sitamarhi as passed in Trial No.4 of 2007 (Sursand P.S. Case No.3 of 2003), whereby the appellant has been convicted under Section 20(B)(ii)(b) of the N.D.P.S. Act and sentenced to R.I. for four years and fine of Rs.25,000/- and in default of payment of fine to undergo R.I. for six months. 1. The prosecution case vide the written report (Ext-5) of Birendra Kumar Verma, Assistant Commandant, 9th BN SSB Sitamarhi, (not examined) was that on 12.01.2003 at about 04.45 P.M. while Nayak Taga Ram (P.W.2) with LN Manohar Lal (P.W.1) and Constable Sher Singh (not examined) was on patrolling duty beside Baleshwar Sthan Mandir near Nepal boarder, they saw two persons coming from Nepal side. Seeing the police personnel, they tried to escape but they 2 were intercepted and apprehended by the police party. One of them disclosed his name as Satyendra Kumar (appellant) and the other one told his name as Rukesh Kumar (who is reported to have been found juvenile and his case sent to the Juvenile Justice Board). After their apprehension they were searched by the informant in presence of witnesses Mahendra Prasad Akela (P.W.4) and Ram Kilip Singh (P.W.3) as a result of which 6.25 Kgs. of ganja was recovered from a Jhola possessed by the appellant. 6 Kgs. of ganja was also recovered from the jacket worn by other accused Rukesh Kumar. 2. That the appellant could not give any satisfactory explanation regarding the possession of recovered ganja, therefore, he was apprehended and he, along with the seizure list, prepared for the recovery was handed over to the officer-in-charge, Sursand police station where formal F.I.R. was instituted by the officer-in-charge. After institution of formal F.I.R., the officer-in-charge took up the investigation himself and on completion of investigation, charge sheet was submitted. During investigation, the I.O. had sent sample of ganja to the Forensic Science Laboratory, Muzaffarpur under letter dated 22.2.2003 through special messenger. The report dated 14.1.2004 of the FSL was received wherein the sample was found to be ganja. 3. As many as seven witnesses were examined by prosecution. The appellant/accused also examined one defense witness. The informant Birendera Kumar Verma, in whose presence the recovery was made and seizure was prepared and on whose written report, the F.I.R. was instituted was not examined by prosecution. P.W.1 LN, Manohar Lal 3 and P.W.2 Taga Ram are the members of the police party who are said to have apprehended the appellant with the ganja. P.W.3 Ram Kilip Singh is a seizure witness but he has turned hostile. P.W.4 Mahendra Prasad Akela is the seizure witness but he also did not support the factum of recovery. P.W.5 Satrughan Giri is an independent witness but he too turned hostile. P.W.6 Nagenera Kumar Singh is the investigating officer of the case. P.W.7 Satya Narayan Singh had proved the writing on written report (Ext.5) and the seizure list (Ext.6). 4. D.W.1, Kamlesh Prasad Singh was examined by the appellant/accused who stated that he, along with Satyendera Kumar, the appellant had gone to Sursand to attend a Barat Party in the house of Uma Kant Jha and that in the ensuing morning when he and the appellant had gone out in the fields to attend call of nature, they saw that the police party was chasing two persons but those persons managed to escape leaving something behind and that the police party apprehended the appellant who was defecating near that place. Thus the defense witness has tried to impress that the appellant was apprehended on suspicion while he had gone out for defecating. 5. The P.W.1 has stated that while he, along with the P.W.2 and constable Sher Singh (not examined) was on duty near Baleshwar Mandir close to pillar 308 at Nepal boarder they saw two persons coming from the side of Nepal and that they tried to escape but they were apprehended and on search 6 and 1/4 kgs of ganja was recovered from the Jhola possessed by the appellant. He also deposed that he informed the Company Commander and that on his arrival, the 4 apprehended persons were searched and a seizure list was prepared by the Company Commander. He further stated that he had carried out the search on the apprehended persons. 6. The P.W.2 also deposed that while he was on duty along with P.W.1, the appellant was seen near Nepal boarder and on search ganja was found in the jhola possessed by the appellant. He also deposed that the Company Commander Shri Birendra Kumar Verma was informed and on his arrival the recovery and seizure of ganja was made in his presence. He also deposed that the seizure list was prepared by one Askra Nand of his office. But this Askra Nand has not been examined by prosecution. This witness has stated that the recovered ganja was seized and seizure list was prepared. The seizure memo (Ext.6), said to have been prepared at the P.O., mentions the quantity of the seized ganja as 6 and 1/4 kgs but this witness (P.W.2) has stated at para-7 of his cross- examination that the ganja was brought to the police station where it was weighed and seizure list was prepared. Thus according to this witness, the seizure memo (Ext.6) which mentions the same to have been prepared at the P.O. was actually prepared at the police station. 7. The P.W.3 who is a witness on the seizure memo (Ext.6) identified his signature on the seizure list but he stated that the seizure list was not prepared in his presence. He denied to have said before the I.O. that the recovery of 6 and ¼ kgs ganja from the appellant/accused was made in his presence. In his cross-examination at para-5 he stated that he runs a tea shop near Sursand P.S. and that when he had gone to the police station for serving tea the officer-in-charge had obtained his 5 signature on blank paper. This has to be remembered here that the I.O. of the case was examined as P.W.6 and in his evidence he has not proved any statement of this witness (P.W.3) that he had stated before him that the recovery was made in his presence. Thus, there is nothing to disbelieve or discredit the testimony of the P.W.3 who has been examined by the prosecution as seizure witness but he stated that the seizure was not made in his presence and that his signature had been obtained on blank paper. 8. P.W.4 is the another seizure witness and he simply identified his signature on the seizure list and in his cross-examination he stated that when he was returning after offering Puja in Balkeshwar Mandir Sthan, near Pillar No.308, the officer-in-charge called him at the police station and obtained his signature on a blank paper. Though he was examined as a seizure witness but he does not support the factum of recovery rather he stated that his signature was obtained on blank paper and curiously enough this witness was not declared hostile by prosecution. Thus there is nothing to discredit his testimony. 9. P.W.5 was examined as independent witness on the point of recovery of ganja from the appellant but this witness has also turned hostile to prosecution. In his examination-in-chief he stated that he knows nothing about the occurrence. This witness was suggested by the prosecution that he had said before the I.O. that the recovery of ganja was made in his presence. This again is to be remembered here that the I.O. (P.W.6) has not proved any police statement said to have been made by this witness in support of prosecution and towards which the 6 attention of the this witness was drawn by prosecution. Thus the evidence of this witness does not help to prosecution in any manner. 10. P.W.6 is the Investigating Officer of the case. He stated that Mr. Birendea Kumar Verma, Assistant Commanded had come to the police station and he had handed over to him, the appellant, the seized ganja and the seizure memo along with his written report. He further deposed that he instituted the F.I.R. and thereafter, took up investigation himself. He stated that he had also prepared a production-cum-seizure list (Ext.2) at the police station relating to the produced ganja. He also stated that the appellant was arrested and the produced ganja was kept in Malkhana at the police station. He stated to have visited the place of occurrence and described about the same. He further deposed that he had sent the sample of ganja to Forensic Science Laboratory and he had submitted charge sheet after completion of investigation. At para-5 of his cross- examination, he stated that the ganja was produced before him in unsealed packet and that he also had not sealed it. Thus, the ganja was not sealed by the informant in whose presence the recovery is said to have been made nor by the officer-in-charge who received the ganja from the informant and said to have kept the same in the Malkhana of the police station. Any detail of the serial number of the register of Malkhana about keeping the ganja in Malkhana has not also been disclosed. The I.O. admitted at para-7 of his evidence that the recovered ganja was not produced when he was adducing his evidence before the trial court. The Jhola possessed by the appellant and from which the ganja is said to have been recovered was not produced in Court. 7 11. P.W.7 is a formal witness who proved the writings on the seizure memo and the seizure list respectively marked as (Exts.5 and 6). 12. During hearing, the learned counsel for the appellant pointed out several infirmities in the evidence of the prosecution witnesses and he argued that the prosecution case is highly doubtful and the recovery and seizure of the ganja has not been proved beyond doubt. Firstly it was argued that the seizure witnesses namely, P.W.3 and P.W.4 did not support the factum of recovery and they also stated that their signature was obtained on blank paper. It was pointed out that even the I.O. did not prove any police statement of these hostile witnesses to show that they had supported the prosecution case before the I.O. on the point of recovery and seizure. 13. It was further argued that the P.W.5 who was examined as an independent witness on the point of recovery and seizure did not support the prosecution story and he has stated to be knowing nothing about the occurrence. It was pointed out that this witness was suggested by the A.P.P. that he had supported the prosecution story before the I.O, but the I.O. did not prove any statement of this witness given to him during investigation supporting the case of prosecution. Thus, there is nothing to discredit this witness and his evidence does not help the prosecution case in any manner, rather it affects the case of prosecution in adverse manner making story of search and recovery as propounded by the prosecution doubtful. 14. It was further pointed out that the seizure memo is said to have been made by the Assistant Commanded Mr. Birendra Kumar 8 Verma at the place of recovery and it mentions weight of the recovered ganja as 6 and 1/4 kgs but the P.W.2 who is said to be a member of the police party has stated at para-7 of his evidence that the ganja was weighed at the police station. Thus when the ganja was not weigh at the P.O., it is suspicious how its weight could be mentioned with exactitude showing it as 6 and 1/4 kgs in the seizure list. Besides this, the P.W.2 also stated at para-3 of his evidence that the seizure list was prepared by one Askra Nand of his office. This Askra Nand has not been examined by prosecution. This is another lacuna in the case of prosecution. Above all, the Assistant Commanded Mr. Birendra Kumar Verma who was the most responsible Officer in whose presence the recovery and seizure of the ganja is said to have been made and who has also signed on the seizure memo has not been examined by prosecution. This is yet another lacuna in the case of prosecution which goes to bring the prosecution case under shadow of doubts with regard to the alleged recovery and seizure of ganja. 15. Besides this there is another legal lacuna in the case of prosecution. Section 55 of the NDPS Act (hereinafter referred to as the ‘Act’) enjoins that on seizure of any narcotic substance, the Officer-in- charge of the concerned police station shall take charge of the article and keep it in safe custody and pending the orders of the Magistrate, all these articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any Officer who may accompany such article to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take 9 samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. 16. In view of the provisions as provided in Section 55 of the Act it is mandatorily required that the Officer who produces the recovered and seized narcotic substance before the officer-in-charge, shall put his seal over the article and that if any sample is taken out from those seized articles the sample will also be sealed with seal of the officer-in-charge of the police station. In the instant case, the officer-in-charge of the police station where the seized ganja is said to has have produced, and who also happens to be the investigating officer of the case, has categorically admitted in his evidence (P.W.6 at para-5) that the informant had produced before him the ganja in unsealed packet and that he (P.W.6) too had not put any seal over the same. This witness stated that the ganja was kept in the Malkahan of the police station but any record was not produced before the court nor any details of the register of the police station was mentioned to show that it was kept in the Malkhana. The seized ganja was also not produced in the Court. Thus, the story of the recovery, seizure and keeping of ganja in police Malkhana comes under the clouds of grave doubt. 17. The report of the FSL (Ext.4) mentions that the sample of ganja was sent under letter dated 22.2.2003. The date of recovery and seizure is stated to be on 12.1.2003. Thus the ganja is said to have been sent to the FSL after one month and ten days of the recovery. In the circumstance, when the ganja was not sealed by the producing officer nor by the officer-in-charge of the police station where it was kept in 10 safe custody and the sample being sent after one month and ten days of the recovery, these all these circumstances raise a grave doubt over the prosecution story that a sample obtained from the seized ganja taken and the same was sent to the FSL. 18. Thus considering the facts and circumstances and the infirmities in the case of prosecution as discussed above, I find that the prosecution story of the recovery of the ganja from the appellant is shadowed with grave doubts and the prosecution has not been able to prove the charge beyond doubts, therefore, the charge is held not proved. The appellant is acquitted of the charge. The judgment of conviction and order of sentence as passed by the learned trial court is set aside. 19. The appeal is allowed. 20. The appellant is in custody. He is ordered to be set at liberty, if not required to be detained in connection with any other case. Patna High Court, dated 16th September, 2010 NAFR/Ravi/- (Chandra Mohan Prasad, J.)