Criminal Appeal (SJ) No. 453 of 2010 With Criminal Appeal (SJ) No. 611 of 2010 ---------- Against the judgment and order of conviction and sentence dated 12.5.2010 passed by Shri Rajiv Srivastava, Additional Sessions Judge – IX, Saran at Chapra in NDPS Case no. 13 of 2005 arising out of Rasulpur P.S. Case no. 41 of 2005. --------- Cr. Appeal (SJ) No. 453 of 2010 Serajul Ansari, son of late Akabar Mian alias Sharif Ansari, resident of village – Bshambhara, P.S. – Gopalpur, District – West Champaran ………. Appellant Cr. Appeal (SJ) No. 611 of 2010 1. Upendra Bharti, son of late Ram Sarekha Bharti, 2. Birendra Bharti, son of late Jimi Bharti, both residents of village – Ashani Mathia, Police station – Rasulpur, District – Saran ..……. Appellants Versus The State of Bihar ..…….. Respondent (in both the appeals) ------------ For the Appellants : Sarvshri Vindhyakeshari Kumar, Senior Advocate Girish Chandra Sharma, Bashishtha Nr. Mishra, S.N. Rai & B.K. Mishra, Advocates. For the State : Shri Ajay Mishra, A P P ---------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ---------- Dharnidhar Jha, J. The two appeals – one preferred by the solitary appellant Serajul Ansari and the other by appellants Upendra Bharti 2 and Birendra Bharti arose out of the judgment dated 12.5.2010, rendered by Additional Sessions Judge – IX, Saran in NDPS Case no. 13 of 2005 by which the appellants appear convicted under section 20(B) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the “Act”). After hearing on the quantum of sentence to be inflicted upon them on the same day, the trial judge directed the appellants to suffer RI for ten years as also to pay a fine of rupees one lac each, else to suffer RI for further period of one year. 2. The prosecution case is contained in the self statement of P.W. 1 SI Brahamdeo Singh, who on 28.9.2005 was the Officer Incharge of Rasulpur Police station. He stated that he was on raiding spree and after having conducted raid for apprehension of persons against whom warrants of arrest were lying un-executed, he received some secret information that at the house of the two appellants, namely, Birendra Bharti and Upendra Bharti, some suspected persons were sitting and Ganja in huge quantity was also lying stored there. The informant along with the raiding party came to village – Asahni Mathiya at 12.15 on 28.9.2005 and after observing the rules of search and seizure, started search of the house of the appellants Upendra Bharti and Birendra Bharti, in presence of Rajesh Bharti (P.W. 4) and Vijay Kumar Bhagat (P.W.3). While the raid was being conducted, a man came out of the house of the appellants Upendra Bharti and Birendra Bharti and started running away, who was chased and apprehended and that man was appellant Serajul Ansari. From the search of the house of the two appellants, ganja and bhang as per 3 description in the FIR as also in the seizure memoes (Exts 1 and 1/1) were recovered and the document seizure memoes were prepared in the presence of P.Ws 3 and 4. The two appellants Upendra Bharti and Birendra Bharti were apprehended. During questioning, appellant Serajul Ansari is said to have stated that it was he who supplied ganja to the remaining two appellants. The police stated that the confession about the above fact was made by appellant Serajul in the presence of villagers who were assembled there. On the basis of Ext. 2, the self statement of P.W. 1, the FIR of the case (Ext. 3) was drawn up and investigation was taken up, during which course, the witnesses were examined and the sample drawn from the seized articles was sent for chemical analysis by the Forensic Science Laboratory, Patna, which submitted its report (Ext. 4) dated 30.6.2008, as per which, the sampled articles were ganja as the basic organic substance was the same as is found, on such analysis, in ganja or cannabis. As a result of the materials appearing sufficient against the appellants, the police sent them up for trial and the same ended in their conviction. 3. The plea of the appellants in the defence was of innocence and false implication. 4. Seven witnesses were examined by the prosecution, out of whom P.Ws 3 and 4 who were witnesses to seizure, stated that no search had been conducted in the house of the two appellants Upendra Bharti and Birendra Bharti, but they had been forced to sign blank papers and, as such, they admitted their signatures on the two seizure memoes, which were marked as Ext. 4 series. P.W. 7 Suresh Bharti 4 was declared hostile as he was not supporting the prosecution story. The support to the prosecution charge was lent by P.W. 1 Brahamdeo Singh, P.W. 2 Hawaldar Ramchandra Mandal and P.W. 5 ASI Jagmohan Prasad, who were the members of the raiding party. They all supported the prosecution story as is contained in the self statement of P.W. 1. 5. However, on the scrutiny of the evidence of these witnesses, what appears is that there was complete lack of evidence as to on what date the seized articles were handed over or delivered to the Officer Incharge of the police station. It might be said that SI Brahmdeo Singh (P.W. 1) was himself the Officer Incharge of the police station, but when the Officer Incharge of the police station is absent from there, then as per section 2(o) Cr.P.C., any officer next in rank or seniority could be the officer incharge automatically by virtue of the definition contained in the Cr.P.C. There is no dispute that SI Brahamdeo Singh was out of the police station in connection with his official duties of executing pending warrant of arrest as also for making raid in that connection as also in connection with the secret information he had received when he had gone out of the police station to execute the warrant of arrest. As such, he could never be, for that particular period during which he was away from the police station, said to be the officer incharge of the police station, even if he was regular officer incharge of the police station as per the rules of the Cr.P.C. as also the provisions of the Act, specially section 55 of the Act, he had to deliver the seized articles to the officer incharge, who 5 was holding the fort in his absence and to comply with the provision of section 55 of the Act. 6. I have already noted that there is complete absence of evidence that the seized articles were delivered by P.W. 1 to any officer, who was for that particular period, the officer inchare of the police station who had ensured the safety of the seized article which is required to be ensured as the very language of section 55 of the Act indicated. How the article has to be secured is also indicated by the same provision when it mandates that the officer who had either seized the article had brought the seized article to the police station or who had been deputed for the purpose of bringing the seized article to the police station has to put his personal seal over it. The purpose for putting the personal seal by the officer seizing or bringing the seized article to the police station is very sacrosanct. It is with the purpose only to secure that the seized article is neither substituted nor adulterated or is neither doubted either to be adulterated or replaced. This is the reason that further safeguard appears in the same provision which requires that when it comes to taking representative samples out of the seized articles, the officer incharge has to put his seal over the drawn samples which had been sealed for forwarding to the Forensic Science Laboratory. The very mandate requiring the officer incharge to put his seal over the sealed packets of samples informs us that unless the officer incharge could be present, how could he be sealing the seized articles unless he was satisfied about the purity of the contents of the seized article. That is the reason that the officer who had 6 produced the sealed article and handed over the custody of the same to the officer incharge is also required to put his seal over the drawn sample and seal it for the purpose of forwarding it to the FSL. 7. Now when we consider the evidence, that of P.W. 1 in paragraph 18 indicates that the seized article was brought into the police station without being sealed. I have already noted that there is complete lack of evidence that P.W. 1 had put his seal for securing the seized article so as to eradicating any chance of the same or part of the same being replaced or adulterated. Same is the state of evidence when it comes to other part of the provision of section 55 of the Act. The officer incharge, who was incharge of that office when the seized articles were brought to the police station, does not appear having put his seal over the sealed packets of sampled articles. There is complete absence of evidence in that behalf also. When the packet was sealed and who were present at that particular moment is also completely absent as regards the evidence in that behalf. Thus, it appears a case where the provision of section 55 of the Act appears completely not complied with. This is one aspect which creates a doubt in the mind of this Court that it cannot be said with certainty that on account of not being secured properly by putting a seal as required by the provision, there could not be any chance that either the seized substance had been replaced or adulterated by another substance under any ulterior motive. 8. That appears more prominent when we consider some of the relevant dates regarding sealing, dispatch and preparation of the 7 report after analyzing the sampled articles received by the FSL. The date of occurrence is 28th September, 2005. What may appear from the report of the FSL (Ext. 4) is that the sampled article was dispatched from the police station by its memo no. 219 dated 9.3.2006, i.e., after more than six months of the seizure of the article. The article was dispatched from Rasulpur police station in the district of Chapra, which this Court could judicially notice, is well connected with Patna where the FSL is located. But, the dispatched packet containing the drawn samples was reaching the FSL headquarters on 17.4.2006, i.e., after one month and eight days. Where the sealed packets were lying for thirty eight days goes unexplained by the prosecution. Not only that, the FSL report was prepared on 10.6.2008, i.e. after two years of the receipt of the sampled articles. I have, in a few decisions, placed reliance upon Valsala Vs. State of Kerala reported in 1994(1) Cr. L.J. 1 in which the Supreme Court was considering these circumstances on delayed dispatch, receipt and submission of report and were acquitting the appellant before them on the ground that there could always be a probability indicating as if the article, which had been seized, had neither been sealed nor it had been sent to the FSL and, as such, there could be a lingering doubt in the mind of the Court that it might have been substituted by some other substance so as to seeking conviction of the appellants. 9. So far as the case of Serajul Ansari is concerned, the evidence of witnesses indicated that he had run out of the house of the two appellants Upendra Bharti and Birendra Bharti and further that he 8 was chased and caught and that he was confessing in presence of the police before general public. That confession, by itself, could not be admitted by virtue of the absence of any support it could have got by examination of independent persons. Besides the evidence which is of the witnesses is that he was confessing by stating that he was the person who supplied ganja to the remaining appellants. Recovery was not from Serajul and his folly was that he was present at the house of the remaining appellants and after seeing the police he was attempting to run away from there. Very few persons howsoever courageous they may be, could dare remain present at any particular place of occurrence after arrival of a police officer. This could be the general human conduct and there could not be any exception in the case of a person of unmanly behaviour, like, appellant Serajul Ansari. It may not be that one could be finding himself in the dragnet of the police but might be that police humiliates someone by putting some uncomfortable questions so as to seeking an explanation from him. Those questions could be deeply humiliating and no one would be enjoying that humiliation, which could be unavoidable. That may be the case with appellant Serajul Ansari. 10. Having regard to the evidence, discussions of facts and law, I find that it was a case in which appellants deserved to be acquitted on account of the infirmities which were afflicting the prosecution as regards the proof of charges. There could be serious doubt about the veracity of the prosecution story on all details and considering that, the two appeals are allowed by setting aside the 9 judgment and order of conviction and sentence passed upon the three appellants. The three appellants are in custody, they shall be set at liberty forthwith if not wanted in any other case. (Dharnidhar Jha,J.) Patna High Court, The 1st August, 2011, NAFR/Anil/