CRIMINAL APPEAL No.700 OF 2007(S.J.) (Against the judgment and order of conviction dated 18th June 2007 and 22nd of June 2007, passed by Sri Brajendra Kumar Srivastava Additional District & Sessions Judge IX, Patna in Special Case No. 75/2004) ******** Sakaldeep Rai son of Lachhan Rai R/o Village Mirampur P.S. Raghopur, District- Vaishali ----(Appellant) -:Versus:- State of Bihar ----(Respondent) For the appellant : Mr.Dhirendra Kumar Sinha & Mr. Ram Sewak Prasad Advocates For the State : Mr. Satya Narayan Prasad, A.P.P. ****** P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL *** Kishore K. Mandal, J. Challenge in this appeal is thrown to the judgment and order of conviction dated 18th of June, 2007 and 22nd of June 2007, recorded by the learned trial court (Additional District and Sessions Judge, IX, Patna ) in Special Case No. 75 of 2004, whereby the appellant has been found guilty of violating Section 8( c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 ( hereinafter referred to as N.D.P.S.Act). The appellant has been convicted under Section 20(b) & (c ) of the N.D.P.S.Act. 2 2. The present trial is an enation of Rajendra Nagar Terminal Patna Junction Railway P.S. Case No. 540/2004. 3. Background facts in a nutshell are as under: “On 11.12.2004 at about 8.30 P.M. the informant of this case, namely, Nigam Kumar Verma (P.W.1) along with other police personnel was on patrolling duty at platform No. 1 to 4 of Rajendra Nagar Terminal within the city of Patna. In course thereof, they reached near the eastern over bridge on Platform No.1 and found two persons moving carrying one carton each on their shoulders. Finding them in suspicious condition, the informant commanded them to stop. It is the prosecution case that when the police personnel tried to captivate them they started fleeing away whereafter they were apprehended and interrogated. The two accuseds are said to have disclosed their identities. Appellant herein was found one of them. The other accused accompanying appellant was identified as Bijay Kumar Mahto (not the appellant). The informant thereafter carried search of the cartons which were allegedly being carried by them on their shoulders. It is the prosecution case that 25 Kgs of ‘ganja’ from each carton was/were recovered. The prosecution case further is that in presence of two independent witnesses, namely, Mishri Prasad (P.W.8) and Sheo Balak Paswan (P.W.9) the bags containing contraband article (ganja) was/were seized. A seizure memo was 3 prepared vide Exhibit-1. The same was signed by the two seizure witnesses, namely, Mishri Prasad (P.W.8) and Sheo Balak Paswan (P.W.9). The informant, thereafter, submitted a written report (Exhibit- 2), whereon a formal F.I.R.(Exhibit-3) was drawn. From the prosecution case it further appears that the informant after recording of the case sent both the cartons to the ‘Malkhana’. Kameshwar Prasad Singh (P.W.2) investigated the case, sent the samle drawn from carton for chemical examination on 10.01.2005 (Exhibit 4).The F.S.L. report dated 10.05.2007 was received rather belatedly (Exhibit-5). It was found to be ‘Ganja’. On conclusion of investigation he submitted charge sheet against the appellant and one another. The learned court below took cognizance on 09.03.2005 and the matter was thereafter transferred to the file of the present trial Judge for hearing and disposal. 4. The appellant pleaded not guilty and thus claimed to be tried. The defence of the appellant appears to be that nothing like ‘Ganja’ was recovered from the carton allegedly held by him/them. 5. In order to bring home the charges, the prosecution, in all, got examined altogether 9 witnesses. Nigam Kumar Verma (P.W.1) is informant of this case, who is a police official. Kameshwar Prasad Singh (P.W.2), A.S.I. of 4 police is the Investigating Officer of this case who conducted investigation and thereafter submitted charge-sheet. Deo Muni Singh (P.W.3), Vinay Kumar Singh ( P.W.4), Radhe Kant ( P.W.5), Jay Bahadur Rai (P.W.6) and Ambika Prasad (P.W.7) are the other police personnel/ constables who constituted the raiding team. Mishri Prasad (P.W.8) and Sheo Balak Paswan (P.W.9) are the witnesses to seizure of the two cartons which were allegedly being carried on shoulders by the present appellant and one Bijay Kumar Mahto. The defence did not choose to produce any witness. The learned trial court on the basis of the evidence on record found the appellant guilty and convicted as noticed above. 6. The issue before this court is whether on the basis of the evidence adduced on behalf of the prosecution and the documents placed on record the charge(s) leveled against the appellant stands proved beyond reasonable shadow of doubt. 7. This court in order to have birds’ eye view of the case proposed to first scan the evidence brought on record. 8. Nigam Kumar Verma (P.W.1) is none other than the informant of this case. He has deposed to the effect that on 11.12.2004 he was on patrolling with slew of police personnel ( which include the other PWs). He further deposed to that effect that he found two persons moving near the over bridge in suspicious manner. Each of them was 5 carrying a carton on their shoulder. This witness started interrogating those accused persons (including the appellant herein). As they were unable to answer satisfactorily, the cartons carried by them was/were searched in presence of two independent witnesses (PWs 8 & 9). This witness is said to have found that each carton contained 25 Kgs of ‘Ganga’. The cartons were tied with a plastic rope. According to him, he got the seizure memo ( Exhibit-1) prepared at the place of search itself and obtained signature of the punch witnesses (PWs 8 & 9) and the L.T.Is. of this appellant and other co-accused was obtained thereon. This witness further goes on record saying that after such seizure of the articles the cartons containing the articles were sent to the ‘malkhana’ and thereafter he submitted a written report (Exhibit- 2). On the basis whereof, a formal F.I.R.( Exhibit-3) was drawn and the investigation was carried out by A.S.I., namely, Kameshwar Prasad Singh (P.W.2). 9. Kameshwar Prasad Singh (P.W.2) is the Investigating Officer of the case. His evidence, therefore, needs to be closely scrutinized. In his examination-in-chief he has stated that during the relevant time he was posted at Rajendranagar T.O.P. and took over the charge of investigation of this case in question on 11.12.2004. He recorded the statement of the informant and other witnesses including the statement of the punch witnesses, namely Mishri Prasad (P.W.8) and Sheo Balak 6 Paswan (P.W.9). He has admitted that the articles allegedly recovered from the cartons were kept in two different cartons/packets and in the same way those articles were seized and kept in two different cartons. He has proved Exhibit-1 and Exhibit 1/A (material Exhibits). According to this witness each packet/carton contained 25 kgs of ‘ganja’ like substance. In paragraph No.3 of his deposition, this witness has admitted that in both the packets/cartons ‘ganja’ like substance was found. He has further stated that he drew sample from these cartons and under orders of the court the same was forwarded on 10.01.2005 (Exhibit-4) for chemical analysis/ examination. This witness has admitted that the seized ‘ganja’ was not found sealed. However, there is positive evidence of this witness to the effect that the sample which was drawn from the cartons/packets was properly sealed. In his cross-examination, this prosecution witness has admitted that the accused/appellant before effecting search was not made aware of his rights contemplated under Section 50 of N.D.P.S.Act. He has also shown his inability to disclose as to how and in what manner the seized substance was/were weighed and found to be 25 kg in each packet/carton. The physical condition of the carton has been admitted described when this witness says that the cartons were in torn state and further he has admitted that those packets/cartons was/were not found sealed. According to him, as a precaution the police case No. was 7 pasted on those cartons which did not contain signature of either the informant or any other police officials. He further admits that the paper so pasted on those cartons also did not contain signature of the accused/appellant. Paragraph no.5 of his cross-examination, needs a deeper look. In this paragraph, this witness has candidly stated that 150gm of the ‘ganja’ like substance was drawn as sample for chemical analysis. He further admits that this factum has not been noted in the case diary. Looking to Forwarding letter (Exhibit-4) this P.W. admits that the same in no uncertain words state that the sample weighing 50 gram was sealed and sent for chemical examination/analysis. This witness looking to the physical condition of the material Exhibit (Exhibit 1/a) stated that the seized articles/packets/cartons were never wrapped in ‘lungi’. It was found in a carton which was seized along with the cartons itself. He further states that the ‘lungi’ and the ‘chaddar’ which was/were brought to court along with the seized substance was not part of material Exhibits of the present case. Before proceeding further this court would like to deal with the Exhibit-4 which is the forwarding letter. A perusal of this Exhibit shows that only one sample weighing 50 grams seized in two cartons from possession of present appellant and one Bijay Mahto was drawn and kept in ‘Jarda ka Dabba’ which was sealed. This Exhibit further indicates that such sample was drawn and sent for chemical 8 examination on 10.01.2005. 10. Deomuni Singh (P.W.3) is a police personnel who was part of the raiding team. He has, in his examination-in-chief, supported the prosecution case. According to him, two cartons carried each by present appellant and one Bijay Mahto was/were seized in presence of the two punch witnesses, namely, Mishri Prasad (P.W.8) and Sheo Balak Paswan (P.W.9). The seizure memo was accordingly drawn. 11. Vinay Kumar Singh (P.W.4) is another police personnel, who was part of the raiding team. This witness, in his examination-in-chief, has stated that on the relevant date and time of occurrence, he was forming a patrolling party and was on patrolling at platform No.1 of Rajendranagar terminal. Two persons were found carrying cartons on their shoulder. They were interrogated and thereafter checked and searched in presence of the two witnesses. This witness has gone on record saying that both the arrested accuseds had disclosed their names but he did not remember their names. In his cross-examination at paragraph no.5, this witness has stated that at the orders of the informant (P.W.1) both the arrested persons had put down their cartons which they were carrying on their shoulder. He has admitted that all the packets were seized and sealed. All the seven police personnel constituting the raiding team became witness to such seizure and signed the seizure document/memo. He is emphatic on this aspect 9 of the matter and further states that the seizure list was prepared then and there and thereafter the cartons/articles were consigned to the ‘malkhana’. 12. P.W.5 Radhe Kant and P.W.6 Jay Bahadur Rai are again the police constables. They have supported the prosecution case in so far as the recovery of contraband articles from the two cartons allegedly carried by two accused persons ( including the present appellant). They have also stated that the articles found in the two cartons were seized under seizure memo in presence of two witnesses namely, PWs 8 and 9. 13. The factual scenario as projected at the trial is, thus, that the contraband articles/substance were allegedly carried in two separate cartons by two accused persons. One of them is present appellant. The witnesses obviously are the police personnels. However, to lend credence to the seizure so effected by the prosecution two seizure list witnesses have been produced in court. They are PW 8 Mishri Prasad and P.W.9 Sheo Balak Paswan. The prosecution is, therefore, heavily relying on these two witnesses. Having underlined the importance of these witnesses, this court now proceeds to scan the evidence of PWs 8 and 9. 14. P.W.8 is Mishri Prasad who claims to be a porter at the station. In his cross-examination, he has flatly refused to endorse the 10 prosecution case and as such he has been declared hostile and has been cross-examined by the prosecution. In his cross-examination his attention was drawn to previous statement made before the Investigating Officer where he is said to have stated that in course of search, on the relevant date and time, two cartons allegedly carried by the appellant and another co-accused was checked and searched wherefrom ‘ganja’ like substance was recovered and the same was seized under a seizure list containing his signature. 15. P.W.9 Sheo Balak Paswan is another witness on the point of recovery and seizure. In his examination-in-chief he has stated that he is a porter. He has flatly denied that on the alleged date and time of occurrence any such recovery was made in his presence from the two carton each carried by the present appellant and another co- accused. In paragraph no.2, he has, however, admitted that the signatures appearing on the seizure memo ( Exhibit-1) are the signature of Mishri Prasad (PW-8) and present witness P.W.9 which have been marked as Annexure-1/1 and ½ respectively. This witness has also been declared hostile and thereafter cross-examined by the prosecution wherein he is said to have denied that he made any such statement regarding recovery of articles/substance in his presence by the police personnel. He also denied to have signed the seizure memo on his own free will. 16. Learned counsel for the appellant on the basis of the evidence 11 and materials available on record has submitted that the learned trial court has committed serious illegalities in convicting the appellants. Learned counsel for the appellant assailed the findings of the learned trial court chiefly on the following grounds/points:- (i) There has been an ex-facie violation of the mandatory provision of Section 50 of the N.D.P.S.Act and as such the impugned judgment is not fit to be sustained. In this regard he placed reliance on the judgment rendered in the case of Kalayath Nassar Versus State of Kerala 1999(7) SCC 309. (ii) The evidence on record is not sufficient enough to indicate conclusively that the alleged seizure and sample thereof was drawn from the carton/packets seized/recovered from his possession and kept in a safe custody. The submission of the learned counsel for the appellant is that admittedly two cartons were seized as admitted by the prosecution throughout and the same was/were thereafter consigned to ‘malkhana’. Admittedly one sample was drawn in a box weighing 50 grams which was sent for chemical examination. There is absolute lack of evidence that the sample was drawn from the carton /packets allegedly recovered from the carton held by the appellant. In this regard he has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Gaunter Edwin Kircher Versus State of Goa AIR 1993 SC 1456. 12 (iii) It has further been highlighted that as per prosecution case the recoveries/serizure(s) were made and effected on 11.12.2004 and the articles/ cartons so recovered were thereafter consigned to ‘malkhana’. Exhibit-4 indicates that only one sample was drawn and sent for chemical analysis only on 10.01.2005. The delay in sending the samples in the light of facts/circumstances appearing in the present case creates a serious doubt in proving the charge against the appellant. According to him, these factums entitle the appellant to an order of acquittal. In this regard strong reliance has been placed on a judgment reported in the case of Ajay Kumar Raj Versus State of Orissa 1996, CRI.L.J.898. 17. Per contra, learned counsel for the State has submitted that there is/are sufficient and cogent evidence on record to show that the appellant was carrying contraband articles in a carton which was seized and subsequently found to be a contraband substance(ganja) and as such the learned trial court has rightly convicted the appellant. Learned counsel for the State further submits that the plea of the learned counsel for the appellant that there has been complete disregard of the provision of Section 50 of N.D.P.S.Act is thoroughly misplaced and mis-conceived. In this regard he has relied upon a judgment of the Apex court rendered in the case of State of Rajasthan Versus Ram chandra 2005(3) PLJR SC 17. 13 18. This court now proceeds to examine the rival contentions advanced by the parties. First of all, I propose to deal with the submission of learned counsel for the appellant that non-compliance with Section 50 of the N.D.P.S.Act has vitiated the judgment recording conviction under provisions of N.D.P.S.Act. Learned counsel for the appellant referring to the evidence on record submits that as per prosecution case itself the article was being carried by the present appellant in a carton which was held on his shoulder. Referring to the evidence of P.W.1 he submits that there is no indication that he was informed about his right to be searched in presence of a Gazetted Officer or a Magistrate. The search was carried out not in presence of either a Gazetted Officer or a Magistrate. It has further been submitted that there is some evidence on record to indicate that the accused/appellant along with the cartons was first brought to the Railway Thana and thereafter search was carried out. It is his submission that normally a Magistrate is deputed at the platform and as such the search should have been carried out in presence of the Magistrate. Learned counsel for the appellant in this regard relies on the judgment rendered in the case of Kalayath Nassar Versus State of Kerala (supra) . Heavy reliance has been placed on paragraph nos 3,5,6 and 7 of the said judgment. A perusal of the judgment indicates that the convict/appellant was found carrying a bag on a vehicle. Two 14 other bags were also found kept close to him. On information the informant intercepted the said vehicle and effected recoveries from the bag allegedly carrying on the shoulder by the appellant as also from the bags kept close to him. Facts of the said case have been culled out in paragraph nos.3 and 4 which read thus:- “3. The facts lie in a narrow compass. PW 1 Circle Inspector Police received information that certain persons were on the move in an autorickshaw carrying brown sugar. He, therefore, went in search of the autorickshaw and came across the same. He stopped the vehicle and found the appellant and two other persons sitting on the seat. When the appellant was searched he was found carrying a bag in which 300 grams of brown sugar had been detected. Two other bags kept close to him were also seized and those bags also contained brown sugar. Further facts of the case are not necessary for disposal of this appeal. 4. It is admitted by PW1 that the appellant was not informed that he has a right of being searched in the presence of a gazetted officer or a Magistrate. When PW 1 was confronted with this aspect he said that the appellant did not make a demand that search should be conducted in the presence of a gazetted officer or a Magistrate. Learned Single Judge of the High Court relied on the decision of this Court in State of Punjab v. Balbir Singh for holding that the requirements of Section 50 of the Act are not mandatory and non-compliance therewith would not vitiate the search. Learned Judge further held that there was no question of non-compliance with Section 50 of the Act in this case inasmuch as the appellant did not make a request on his own that the search should be conducted in the presence of a gazetted officer or a Magistrate.” 15 The Hon’ble Supreme Court noticing the submissions in paragraph nos. 5,6 and 7 held as under: “5. The legal position has since been changed with the pronouncement of the decision of the Constitution Bench of this Court in State of Punjab v. Baldev Singh. It has been held that a search conducted in violation of Section 50 of the Act would vitiate the search and prejudice would be caused to the accused if the requirements are not complied with. 6. The dictum in Balbir Singh has been explained away by the Constitution Bench. In a case where the searching officer failed to communicate to the accused, who was subjected to search, that he has a right to be searched in the presence of a gazetted officer or a Magistrate there would be non-compliance with the requirement of Section 50. Merely for the reason that the accused did not make a request to the searching officer on his own that the search should be conducted in the presence of such officer it cannot be held that there was no need to inform him of that right. 7. In view of the change in the legal position with the pronouncement of the Constitution Bench decision in the aforesaid case the search conducted in this case must be held to have been vitiated. Consequently, it must be inferred that prejudice has been caused to the accused. The evidence concerning the search is not acceptable in view of non- compliance with the requirements of Section 50. There is no other evidence, apart from the search, to prove that the appellant was in possession of the forbidden article. As such we are unable to sustain the conviction and sentence passed by the trial court which were confirmed by the High Court.” Learned A.P.P. appearing on behalf of the State, on the contrary, submits that the said judgment is not applicable to the facts 16 of the case in hand. It has been further argued by him that the said judgment does not hold good in view of the law laid down in the case of Pawan Kumar Versus State of Himachal Pradesh, (2005(4) SCC 350) and the judgment rendered in the case of State of Rajasthan Versus Ram Chandra ( 2005(3) PLJR(SC)17). Facts of the case in the case of State of Rajasthan Versus Ram Chandra (Supra) have been noticed by the Hon’ble Supreme Court in paragraph no.2 which runs thus:- “2. Background facts in a nutshell are as under: On 8.9.1995 Prem Shanker Meena (PW-2), SHO Police Station, Kotwali, Baran having received information about illicit trafficking in narcotic substances, rushed to the place pointed out by the informant and apprehended the accused respondent. Satyendra Singh, Dy. S.P. (PW-3) also reached there. Subsequently, being of the suspicion that accused respondent was in possession of contraband, the SHO informed him of his right to have his search conducted either in presence of Shri Satyendra Singh, Dy. S.P. (PW-3) who was a Gazetted Officer and happened to be present there or in the presence of any Magistrate. The accused consented for his search to be conducted in the presence of the Dy. S.P. (PW-3). On being search, 570 grams of opium was recovered from his possession in the presence of Ramesh Chand (PW-5) and Rajendra Kumar (PW-6).Out of the recovered opium, a sample weighing 30 grams was taken and was sealed. The remaining opium was also sealed. The accused was accordingly arrested vide arrest memo Ex.P-5 and memo of recovery was prepared. The SHO, thereafter, registered a case vide FIR Ex. P- 4 and deposited the recovered opium in the „Malkhana‟. During investigation, the police recorded the statement of witnesses and sent the sample to the Forensic Science Laboratory. On chemical examination, the sample contained in the packet marked ‟B‟ gave positive tests for the chief constituents of coagulated juice of opium 17 poppy having 5.43% morphine.” The submission is that in these circumstances whether compliance of Section 50 was mandatory or not has been dealt with in paragraph nos. 8 and 9 of the said case( at page 19 of the report) which run thus: “8. Only question to be adjudicated is the alleged non-compliance of Section 50. The said provision reads