CRIMINAL APPEAL (DB) No. 189 OF 2010 AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE, DATED 18.01.2010 AND 22.01.2010 RESPECTIVELY, PASSED BY SHRI UMESH CHANDRA SRIVASTAVA, 2ND ADDITIONAL SESSIONS JUDGE, WEST CHAMPARAN AT BETTIAH IN LAURIYA P. S. CASE NO. 156 OF 2006 (TRIAL NO. 3 OF 2007) ASHARFI YADAV, SON OF LATE BHIKARI YADAV, RESIDENT OF VILLAGE – KABLAPUR, POLICE STATION – NAWALPUR, DISTRICT – WEST CHAMPARAN ---------------------------------APPELLANT VERSUS THE STATE OF BIHAR -------------------------------------RESPONDENT P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE DHARNIDHAR JHA ****** For the Appellant: Mr. Ashutosh Kumar, Adv. Mrs. Jyotsana, Adv. Mr. Chandra Mohan Jha, Adv. For the State: Mr. Ashwani Prasad Sinha, APP. Mridula Mishra, & Dharnidhar Jha, J.J. The sole appellant, Asharfi Yadav has been charged under sections 20 (C), 22 (C) and 23 (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “N.D.P.S. Act” for short) and has been convicted by the 2nd Additional Sessions Judge, West Champaran at Bettiah in Trial No. 3 of 2007, arising out of Lauriya P. S. Case No. 156 of 2006 under sections 20 (C), 22 (C) and 23 (C) of the N.D.P.S. Act by the judgment and order, dated 18.01.2010 / 22.10.2010. He has been sentenced for 15 years and 2 fine of Rs. One lac under each count and in default of payment of fine to suffer Simple Imprisonment of two years. 2. Jawahar Prasad Yadav, Officer Incharge of Lauriya Police Station, (P.W. 16) is the informant of the Lauriya P. S. Case No. 156 of 2006. On 13th of September, 2006, he received a secret information through telephonic message that at village Lakad, Police Station-Lauria, huge quantity of Ganja has been kept by the accused persons. Immediately thereafter, he made a station diary entry and proceeded for the place of occurrence along with the members of raiding party, who were, Rudal Raut, P.W. 1; Krishna Manjhi, P.W. 2; Narendra Pandey, P.W. 3; Tej Narayan Rai, P.W. 4; Ravindra Singh, P.W. 5; Gandhi Singh, P.W. 6; Dilip Kumar Choudhary, P.W. 11; Shiv Shankar Singh, P.W. 13; and the informant himself as P.W. 16. When the raiding party reached at the place of occurrence, the appellant Asharfi Yadav and some other persons are said to be started fleeing away from the place of occurrence. Only Asharfi Yadav was apprehended and the rest of the persons succeeded in fleeing away. A search was made and from Haldi field and the adjacent orchard, 377 Kg of Ganja, kept in 19 bags (as per First 3 Information Report) and in 26 bags (as per the seizure memo, exhibit 1) were recovered. 3. So far the case of prosecution to the extent regarding recovery of 377 Kg of Ganja from the place of occurrence that is from the Haldi field and orchard is concerned, is proper, but the rest of the procedure, which has been adopted by the Investigating Officer, the informant and other Police Officials, examined as witnesses, is indicative of the fact that the mandatory provisions provided under the N.D.P.S. Act for search, seizure, sampling, storage and certification of recovered psychotropic substances or narcotic drugs, have been completely ignored. Section 42, 52 A, 55 and 57 of the N.D.P.S. Act are very specific as to how the narcotic drugs or psychotropic substance can be seized, sampled and sent for chemical examination. How, the person from whose possessions such articles are recovered, should be interrogated and the search to be made. How the remaining psychotropic substances and narcotic drugs, besides the sample prepared, should be stored in Malkhana and how it should be destroyed in case there is no provision for its storage in the Malkhana. 4. The evidence of prosecution witnesses in the instant case is an example to show that the Police 4 personnels, who are authorized to investigate such cases are unknown to the provisions of the Act. In fact, P.W. 13, who is the Investigating Officer of this case, in paragraph 10 of his evidence had admitted that earlier also he had investigated the cases relating to narcotic, but so far provisions under this Act is concerned, he is unknown. If the person, who is authorized to investigate the case, is unknown to the provisions, which are mandatory in nature and necessary to be adopted while investigating the matter, what will be the result of such investigation, and finally of trial if conducted in such cases, is well known. 5. P.W.s 7, 8, 9, 12, 14 and 15 were declared hostile. P.W. 10 was tendered. P.W.s 8 and 14 are seizure list witnesses. As such there are only three material witnesses, whose evidence is relevant for the purposes of investigation and submission of chargesheet. P.W. 16 is the informant. In his evidence, P.W. 16 has admitted that no sample was prepared immediately, when the 377 Kg of Ganja were recovered. The date of occurrence is 13.09.2006 and for the first time, it was brought before the Trial Court on 10.10.2006 and at that time the seized articles were sealed. No marking has been put on the seized articles, 5 this is evident from evidence of P.W. 16. The rest of the articles were not stored in Malkhana and no entry of such storage was made in the Malkhana Register. P.W. 16 has also admitted in his deposition that sample was for the first time taken, when the seized articles were produced before the Trial Court on 10.10.2006 in presence of the District & Sessions Judge. He has also admitted that the samples were not taken from each of the bags, but 100 gm were taken out for sampling from two bags only. It has also been admitted by P.W. 16 that the sample so prepared in presence of the Court of District & Sessions Judge on 10.10.2006 was dispatched for its chemical examination to Forensic Science Laboratory through Constable, Thakur Murmu. FSL Report shows that it reached to Forensic Science Laboratory after 10 days on 20.10.2006. The constable, Thakur Murmu has not been examined as witness, who could have explained that when the seized samples were sent through special messenger, how 10 days time were spent in between, and why it could reach to Forensic Science Laboratory after 10 days. So far Forensic Science Laboratory report is concerned, it does not indicate that any seal was there, when it reached for its chemical examination. 6 6. The counsel, Mr. Ashutosh Kumar, appearing for the appellant has submitted that the evidence on record indicates that though there was a huge quantity of Ganja found lying at Haldi field, but so far the appellant being in its possession, there is no evidence. There is nothing to show that the appellant had any knowledge regarding these articles, simply because he started fleeing away from the place of occurrence, will not amount and can not be considered as his guilt. There being no evidence to show that these articles either belonged to the appellant or the same was recovered from actual conscious possession of the appellant, there can not be presumption of this fact that as the appellant started fleeing away, he is guilty, and for that his conviction is completely, in violation of provisions under the Act. The evidence of the Investigating Officer, where he has admitted his ignorance about the provisions of the N.D.P.S. Act, puts a complete seal on the legality of the investigation because the N.D.P.S. Act is a special Act. The procedure provided under the Act, so far its investigation, search, seizure and all relevant aspects of the Act is concerned are mandatory in nature and if the Investigating Officer is ignorant of its provisions then it can not be presumed 7 that he would have followed the procedure. In fact there is no reason to presume it, as the Investigating Officer himself has admitted that he has not done anything in accordance with the provisions under the Act. This a case which indicates such serious nature of case, in which 377 Kg of Ganja were recovered, accused persons were not proceeded with properly and the result of which will be that conviction and the trial can not sustain. 7. We are unable to hold that the sole appellant was properly convicted by the Trial Court, following the provisions of the law. However, serious be the case, unless the charges are proved in accordance with law, conviction can not sustain. 8. Accordingly, the impugned judgment passed by the Trial Court and the sentence passed therein are set aside. The appeal is allowed. The appellant is in custody. He is directed to be released forthwith, if not required to remain in custody in connection with any other case. Patna High Court, Patna Dated: 18.11.2010 NAFR/Shashi Kant Mishra (Mridula Mishra, J.) (Dharnidhar Jha, J.)