IMPORTANT POINT
Seizure of Ganja – Violation of requirement under Section 50 of N.D.P.S. Act is fatal to case of prosecution.

JUDGMENT (ORAL)

Ashutosh Kumar. J.—We have heard the Criminal Appeal (DB) No. 850 of 2015 (Santosh Kumar); Criminal Appeal (DB) No. 916 of 2015 (Manoj Kumar) and Criminal Appeal (DB) No. 1018 of 2015 (Santu Kumar vs. the State of Bihar) together, all of which are being disposed of by this common judgment.

2. We have been informed that one more appeal, namely, Criminal Appeal (DB) No. 720 of 2015 (Pawan Kumar) is pending consideration before this Court. The file of the aforesaid criminal appeal has been notified and summoned and the same is also being disposed of by this common judgment.

3. We have heard Mr. Dhirendra Kumar Sinha, the learned Appellant in all the appeals and Ms. Shashi Bala Verma, the learned APP for the State.

4. All the appellants stand charged and convicted under Section 20(B)(II)(C) of the NDPS Act, 1985 and they have been sentenced to undergo R.I. for 12 years, to pay a fine of Rs. One Lakh each and in default of payment of fine, to further suffer rigorous imprisonment for one year separately.

5. The F.I.R., namely, Bihar P.S. Case No. 217 of 2013 dated 16.07.2013 for offences under Section 20, 21 and 22 of the NDPS Act and Section 414 of the Indian Penal Code was lodged by PW1, who has alleged that at about 3 O’ Clock in the morning of 16.07.2013, he was informed by the Special Task Force that two vehicles; one being a Marshal Jeep and the other, a Honda City Car are likely to come from Biharsharif direction and in those vehicles, Ganja has been loaded.

6. The afore-noted information was reduced in writing and an entry was made in the station diary. A raiding team was constituted by PW1, which included other police officers, who have been cited and examined as PWs 2, 3 and 4. A request was also made to the Sub Divisional Officer, Biharsharif for deputing one Magistrate, consequent upon which, one Bhola Prasad Singh, the Magistrate (PW8) was deputed. The raiding team took its position on the road. Two vehicles of the make of Marshal and Honda City were spotted at around 4.20 A.M. on 16.07.2013 only. When signalled to stop, two persons came out of the Honda City Car and started fleeing away. The afore-noted persons were nabbed by the police party, who disclosed their names as Pawan Kumar and Santu Kumar, the appellants in Criminal Appeal (DB) No. 720 of 2015 and Criminal Appeal (DB) No. 1018 of 2015 respectively.

7. A search was made in both the vehicles. From Marshal Jeep, 100 bundles of Ganja was recovered whereas from Honda City Car, 57 packets of Ganja were recovered. Each of the packets weighed one kilogram.

8. Two of the other appellants, namely, Manoj Kumar and Pawan Kumar, the appellants in Criminal Appeal (DB) No. 916 of 2015 and Criminal Appeal (DB) No. 850/2015 were found sitting in the Marshal Vehicle, who too were arrested. The aforenoted persons disclosed before the police party that the narcotics belonged to one Dilip Sao of Fatuha. The consignment had come from Orissa. PW1 has further stated that the narcotics were sealed in presence of two of the on-lookers and brought to police station whereafter formal F.I.R. and seizure list was prepared. Two of the witnesses of the seizure list have been examined as Pws 5 and 6, namely, Pankaj Kumar and Surendra Prasad respectively, both of whom have not supported the prosecution version.

9. During the trial, PW1 supported the allegations made in the F.I.R. However, during crossexamination, he did not state anything to establish that the arrested persons were given the option of being searched in presence of a Magistrate.

10. There is nothing in the statement of PW1 which would even remotely indicate as to the manner in which the seized articles/ narcotics were sealed or any sample drawn from the same. On the contrary, it has been asserted that it was brought to the police station in the same condition in which it was seized and thereafter it was kept in two bags which were tied up. There is no statement with regard to the same having been sea