IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL No. 736 of 2007 (Against the Judgment of conviction and order of sentence dated 28th July, 2007 passed by 1st Addl. Sessions Judge, Saran in N.D.P.S.Case No. 08 of 2005.) DEO NARAIN SINGH, S/o. Bhola Singh, R/o. Village- Appayal Dera, P.S. Sukhpura, Distt. Balia (U.P.) ---------------------------------------------(Appellant) Versus THE STATE OF BIHAR-------------------------------(Respondents) For the appellants: Mr. Raghwendra Kumar, Advocate. For the State: Mr. S.N. Prasad, Addl. P.P. PRESENT THE HON’BLE MR. JUSTICE CHANDRA MOHAN PRASAD, ------------ Hon’ble C.M. Prasad, J. This appeal is against the judgment of conviction and order of sentence dated 28.07.2007 of the 1st Addl. Sessions Judge, Saran passed in N.D.P.S. Case No.8 of 2005, whereby the appellant has been convicted under Section 20(b)(II)(c) of the N.D.P.S. Act (hereinafter referred to as the Act) and sentenced to undergo R.I. for ten years and a fine of one lakh and in default of payment of fine to undergo R.I. for two more years. 2. The prosecution story, as per the written statement of informant Ajay Sharma (P.W.1) A.S.I. of 2 Chapra Rail P.S. was that on 02.07.2005 at 7.45 p.m. he received a confidential information at the P.S. that a person who was wearing cream colour Safari was moving on platform No.1 carrying a briefcase and a handbag and that he was about to catch the train for going away. The informant had also got information that ganja was contained in the brief case and handbag carried by that person. On receiving information the informant set out to go to railway platform No.1. He was accompanied by A.S.I. Surendra Kumar Singh (P.W.3), constable Hareram Singh (P.W.5), Dharmendra Ojha (P.W.2), Rakesh Kumar (not examined). When the police party reached on platform No.1 below the over bridge, one man of that description was seen. The time was 7’O’ clock. The person was carrying a V.I.P. briefcase and a handbag. On being asked the person felt confounded and he started giving evasive reply but on further question he disclosed his name Deo Narayan Singh, the appellant. The informant further stated that in presence of witnesses, namely Sushil Kumar (P.W.4) and Dineshwar Sharma 3 (not examined), the briefcase and the bag possessed by the appellant was searched. As a result of search 16 Kgs of Ganja in two packets of orange and Khakhi colour was recovered from the briefcase and 14 Kgs of Ganja in five packets of Khaki and orange colour was recovered from the handbag. Besides this cash money of Rs.2200/- was also found in possession of the appellant. The possession of the ganja was not explained and hence the same was seized and seizure list was also prepared. The informant proceeded to the Chapra Rail P.S. and gave out his written report, on the basis of which F.I.R. was instituted and investigation commenced. On completion of the investigation charge sheet was submitted and then the appellant was put on trial and he had been convicted and sentenced. 3. As many as seven witnesses were examined by the prosecution. P.W.1 Ajay Sharma is the informant himself, P.W.2 Dharmendra Kumar Ojha, constable and P.W.3 Shurendra Singh, A.S.I. and the P.W.5 Hareram Singh A.S.I. were the members of the police party which had gone the P.O. and had taken 4 part in the act of recovery and seizure. P.W.6 Suresh Prasad, S.I. is the investigating Officer, P.W.8 Ramesh Kumar constable has produced the material Exts-1 & 2 which were produced in Court during trial in a sealed condition and on opening the seal ganja was found in the attaché and the bag which was marked as Ext-II, P.W.9 Lal Gupta is the vendor on the platform. P.Ws. 4 & 9 have turned hostile. 4. The P.W.1 supported the prosecution story deposing about the search and seizure and the manner as stated in his written report. He stated about the recovery of 14 Kgs of Ganja from the briefcase and the packet possessed by the appellant. He also deposed about recovery of cash of Rs.22,00/- from the appellant. He has further deposed that he prepared the seizure list in presence of the witnesses. The seizure list was marked as Ext-5. He identified the appellant in dock during trial. This witness was cross-examined by the defence but in the whole of his evidence he did not say anywhere about sealing of the seized article namely, Ganja at the P.O. or at the P.S., where he had 5 lodged the F.I.R. He also does not say in any specific term that he had handed over the articles to the officer- in-Charge. The P.W. 2, P.W.3 and P.W.5 who were the police personnel had accompanied the informant during the raid, search and seizure and stated about recovery of the Ganja from the possession of the appellant and about the seizure list and the P.O. where Ganja was recovered but they have adduced no evidence on the matter of sealing of the seized articles. 5. P.W.4 and P.W.9 were public witnesses on the seizure list but they turned hostile and in their examination-in-Chief stated that any seizure was not made in their presence. When their attention was drown towards previous statement made before the I.O. in support of the prosecution case, they denied to have made any such statement. 6. Now the most important witness is the Investigating Officer (P.W.6), who stated in his examination in chief that on 2.7.2005 while he was the Officer-in-Charge of Chapra Rail P.S. he got the written report of Ajay Sharma (P.W.1) and on the basis 6 of the written report F.I.R. was registered and investigation was taken up by himself. Then he stated that he took the statement of the witnesses and inspected the P.O. and he described the P.O. as the place below the railway over bridge on platform No.1. He also stated that he took sample of the recovered Ganja and after obtaining permission of the Court he sent it to the Forensic Science Laboratory for chemical examination. After completion of the investigation he submitted charge sheet. 7. The I.O. (P.W.6) states in his examination-in-chief that he took sample from the seized ganja but he does not mention about the date and time of taking of the sample and sealing of the same. During argument learned counsel for the appellant argued that in this case there is no cogent and reliable evidence that the seized ganja was sealed after its recovery. It was also stated that there was also no cogent evidence that even the sample which is said to have been taken by the I.O. was sealed accordingly. 8. Learned counsel referred to Section 55 7 of the N.D.P.S. Act. Section 55 reads as follows: “55. Police to take charge of articles seized and delivered.- An officer-in-Charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all 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 articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take 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.” 9. Learned counsel pointed out that Section 55 of the Act provides it as a mandatory requirement that after search and seizure the seized article will be sealed by the officer who seized it and the concerned Officer-in-Charge of the P.S. will take charge of the seized articles. It is further provided under Section 55 of the Act that in case sample of the seized Narcotics articles is taken then the sample or samples will be sealed by the person seizing it and the Officer-in- 8 Charge of the P.S. taking charge of the seized article. 10. As to the facts of the case it is found that the evidence of the informant regarding seizure of articles does not show anywhere that he had sealed the sample at the time handing over to the same to the officer-in-Charge. In his evidence the I.O., the Officer- in-Charge of the P.S. does not say about sealing of the seized article. The I.O. has simply stated that he took sample of the seized article and sealed it but any date and time of taking sample or sealing is not mentioned. Naturally in such circumstances, it will appear that the Officer-in-Charge took the sample at the time of taking charge of the seized article but in that case the same must have contained the seal on the seized article and no such seal is proved. If it is considered that the I.O. had taken the sample on a subsequent date after the seizure then in that case the sealing of the seized article on the date of occurrence had to be proved but it has not been so proved. 11. The learned counsel for the appellant pointed out in this case any date of taking of the sample 9 and its sealing has not been proved. The recovery and seizure is stated to be on 02.07.2005 and the I.O. has stated that he obtained the Court’s order on 22.07.2005 for sending the sample to the F.S.L. The F.S.L. report has been proved and marked as Ext-6. The report mentions that the sample was received there through letter dated 22.07.2005. Thereafter on expiry of one year and eight months the sample was examined on 13.04.2007 which is the date of the report and it reports that the sample contained Ganja. Thus, Court’s order for sending the sample was obtained after 20 days of recovery and the examination in the F.S.L. was done after one year and eight months of its receipt. The very basic and mandatory requirement of the sealing of the article, in view of the provisions under Section 55 of the Act, at the time when it was handed over to the Officer-in-Charge of the P.S. has not been proved nor the sealing of the sample by the producing officer have been proved if the sample was taken immediately at the time of handing over the same. These are the mandatory requirement as provided under Section 55 of 10 the Act. Since any sealing of the seized article was not proved at the time of its seizure nor any exact time and date has been proved in the taking of the samples by the officer-in-charge a grave doubt is entertained over the matter that the actual article which was seized has been the subject matter of the act of taking sample and examination by the F.S.L. 12. In cases relating to N.D.P.S., law has provided very stern punishment and therefore, strict provisions have been provided so that their may not be chances of false implication. In such view of the matters, the compliance of the provisions which are mandatory in nature has to be considered seriously and non-compliance of such requirement will give rise to grave doubt. Besides this in the instant case there has been a delay of about one year and eight months in the examination of the seized material. Taking together all the factors I feel that the prosecution case is surrounded with grave doubts and the appellant is entitled to the benefit of doubt. Thus, giving the benefit of doubt the appellant is acquitted of the charge. The conviction and 11 sentence as awarded by the learned trial-court is hereby set aside and the appeal is allowed. 13. The appellant is in custody all through. He is ordered to be set at liberty if not required to be detained in any other case. Patna High Court, Dated, the 30th April, 2010 N.A.F.R./Mkr. (C.M. Prasad, J.)