CRIMINAL APPEAL No. 412 OF 2006 WITH CRIMINAL APPEAL N0. 384 OF 2006 ********** (In the matter of appeals under Section 374 (2) and 389 (1) of the Code of Criminal Procedure against the judgment of conviction dated 18th April, 2006 and order of sentence dated 22nd April, 2006 passed by Shri Govind Chandrayan, 4th Additional Sessions Judge, Muzaffarpur in Trial No. 12 of 2006) ******* MD. IDDU, SON OF LATE BANNU MIAN, RESIDENT OF VILLAGE PURAINIA, POLICE STATION MAINATARD, DISTRICT WEST CHAMPARAN, AT PRESENT RESIDING AT VILLAGE NAUTANWA, POLICE STATION SHIKARPUR, DISTRICT WEST CHAMPARAN …………………………APPELLANT ( in Cr. App. 412/2006) WITH TAUQIR AHMAD @ MD. TAKIR AHMAD, SON OF MD. YAKUB, RESIDENT OF VILLAGE NAWTANWA, POLICE STATION SHIKARPUR, DISTRICT WEST CHAMPARAN …………………………….……APPELLANT ( in Cr. App. 384/2006) VERSUS THE UNION OF INDIA ………………………..RESPONDENT ( in both appeals) ********* FOR THE APPELLANTS :- MR. AKHILESHWAR KR. SHRIVASTAVA, ADV. (in both appeals) FOR THE UNION OF INDIA :- MR. SARVADEO SINGH, C.G.C. ( in both appeals) ********* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. These appeals arise out of the judgment dated 18th April, 2006 passed by the 4th Additional Sessions Judge, Muzaffarpur in Trial No. 12of 2006 by 2 which the two appellants have been convicted to undergo rigorous imprisonment for ten years each for the offences punishable under Section 20 (2) C and 23 (c) Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”). The appellants have remained in custody for six years and two months. The prosecution case briefly stated is that the appellants were sitting on a bench at Muzaffarpur Railway Station. Six briefcases were kept in front of them. The complainant who had received information regarding the carriage of Ganja suspected that the appellants were carrying Ganja in the said briefcases and retained them for search in order to ascertain whether these appellants were carrying the Ganja. It is said that one of the persons on seeing the raiding party escaped from the railway station. In the presence of witnesses, search and seizure was made by forcibly opening the briefcases and the statements (Exhibit-3 and 3/1) of the appellants was recorded by PW 6. The investigation proceeded after the search and seizure was made. Altogether six witnesses have been examined in this case on behalf of the prosecution. PW 1 R. K. Shrivastava is the complainant of this case. PW 2 Rajesh Ranjan and PW 3 Indradeo are the members of the raiding party whereas PW 4 Zainul Haque and PW 5 Anil 3 Kumar are the witnesses who had signed the seizure list and PW 6 Surendra Kumar is witness to the confessional statement of the appellants. Counsel for the appellants has pointed out several anomalies in the procedure and manner of conducting the search and has challenged the seizure and the procedure by which the samples were taken by the complainant during the seizure. The first argument raised on behalf of the appellants is that the Ganja was not recovered from the conscious possession of the appellants. It is submitted that there is no evidence to show that the seized briefcases belong to the appellants as the prosecution has brought no material on record to show that the articles in the briefcases belong to these two appellants. It is further submitted that the body search of the appellants was also made, however, the key to the briefcases were not recovered from their possession which indicates that infact the briefcases do not belong to the appellants. It has further been pointed out that the seizure list witness PW 4 has stated that he was present at the railway platform because he was waiting to get the train for Samastipur. The defence has brought on record the statement of the Superintendent of Railways, Muzaffarpur (Exhibit-A) in which it has been stated that the train for Samastipur had left at 6 PM and 4 thus, this witness had no occasion to remain present at the railway platform. On the basis of the aforesaid statement, Counsel for the appellants not only challenges the procedure for conducting the search but also submits that the Ganja was not recovered from the conscious possession of the appellants. It has been pointed out that 13 bags of Ganja was seized by the complainant, however, the complainant took sample from only one bag and that was put it in two envelops which were sealed. It is contended that out of the two envelops that were sealed, only one bore the signature of the appellant. The appellant Tauqir Ahmad is said to have signed along with Anil Kumar on one of the envelops, whereas on the second envelop, R. K. Shrivastava, the complainant, and Sanjeev Kumar have put their signatures. These envelops were produced and marked exhibits before the Trial Court. It is submitted on behalf of the appellants that the procedure in seizing and taking out samples of Ganja was not in accordance with law as the prosecution ought to have taken the signature of the appellants on both the envelops and seizure list witnesses ought to have put their signatures on the envelop as well. It is, therefore, submitted that several defects are present which would throw doubt in the manner in which the seizure was made and this in itself 5 would be fatal to the prosecution case. The second submission made on behalf of the appellants is that there is virtually no compliance of Section 57 of the Act. Section 57 of the Act envisages that where any person make any arrest or seizure under the Act, he shall within 48 hours next after such arrest or seizure, make a full report of the particulars of such arrest or seizure to the immediate superior officials. Admittedly, in this case there is nothing to show that any such report was made to the immediate superiors after the arrest and seizure. The provisions of Section 57 of the Act have been held to be directory and it is said that they would not ipso facto violate the trial or conviction. However, it has been held that the Investigating Officer cannot totally ignore the provisions. Such failure will have a bearing on the evidence regarding the arrest of the accused or seizure of the articles. This aspect has been argued in order to substantiate the arguments regarding the procedure adopted for arresting, searching and seizing the Ganja. I am however also going to take into account the submission of the learned Counsel, along with the next point which is important for deciding this case. Mr. Sarvadeo Singh, learned Counsel 6 appearing on behalf of the Union of India submits that Exhibit 3 and 3/1 which is the confessional statement of the appellant is sufficient to convict the appellants as they have confessed their involvement in the said crime. It has been contended that whatever may be the lacunae in the prosecution case, the appellants are liable to be convicted on the ground that he has confessed regarding the involvement in the alleged crime. The confessional statement is Annexure 3 and 3/1. Learned Counsel for the appellants, on the other hand, points out that the confessional statement of the appellant was not put to the appellants when they were examined under Section 313 of the Code of Criminal Procedure. For this purpose, learned Counsel for the appellants relied on the judgment in the case of Lala Tiwary vs. Union of India, reported in 2007 (2) PLJR 379 wherein the Division Bench of this Court relying on the judgment in the case of Madan Lal and another vs. State of U.P. [(2003) 7 SCC 465 ] and M. Prabhulal vs. Assistant Director, Directorate of Revenue and Intelligence [(2003) 8 SCC 449] has held that the confessional statement can not be made a basis of the conviction if the appellants were not given the opportunity to explain the same in the examination under Section 313 of the Code of Criminal Procedure. On considering the judgment aforesaid, I 7 find that the appellants can not be convicted on the basis of their confessional statement for the aforesaid reasons. In the result, the two appeals are allowed. The impugned judgment is set aside and the above named appellants are acquitted of the charges leveled against them. They are directed to be released forthwith if not required in any other case. ( Sheema Ali Khan, J. ) Patna High Court April 24, 2009 A.F.R./Anand