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PATNA HIGH COURT
Chakradhari Sharan Singh and Nawneet Kumar Pandey, JJ.
Gopi Sah – Appellant
versus
State of Bihar – Respondent
Criminal Appeal (DB) No.840 of 2022
Decided on 3.8.2023
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 22(c) read with Sections 42 and 52A(2)(b) – Illegal trade and smuggling of Ganja – Conviction and sentence – There is no evidence that empowered officer, before conducting search had taken down in writing information or his personal knowledge – There has been complete violation of Section 42 of NDPS Act by informant and other officials by entering and searching house/building – Officials entered into building after sunset and before sunrise without recording grounds of his belief that a search warrant or authorization could not be obtained for causing search in the night without affording opportunity for concealment of evidence or facility for escape of offender – Sample was not drawn at the time of seizure – Sample was not drawn in presence of a Magistrate as contemplated under Section 52A(2)(b) – Failure on part of prosecution to produce seized articles as material exhibit at the trial in absence of any certification of its disposal, gives another blow to prosecution’s case – Appellant was not present in house when search was conducted – Prosecution failed to prove charge against appellant – Appellant acquitted. (Paras 13, 14, 15, 16, 17, 18, 19 and 20)
Result: Appeal allowed.
JUDGMENT (ORAL)
Chakradhari Sharan Singh, J.—By the impugned judgment and order dated 19.09.2022/23.09.2022 passed by the learned Sessions Judge, Saharsa in connection with Special Case No.7 of 2017, arising out of Mahishi P.S. Case No.247 of 2017, the appellant has been convicted and sentenced as under:—
Conviction Sentence
under
Section
Imprisonment Fine In default
(Rs.) of fine
22(c) of the RI for 11 years 1,50,000/- SI for 6
NDPS Act months
2. A self statement of the Station House Officer (SHO) (informant), Mahishi recorded on 27.11.2017, is the basis for registration of Mahishi P.S. Case No. 247 of 2017 disclosing commission of the offences punishable under Section 20(b)(ii) (C) and Section 22 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act in short) which finally gave rise to Special Case No. 7 of 2017 in the court of learned Sessions Judge, Saharsa. It is the prosecution’s case as disclosed in the said self statement that the informant received a secret information on 26.11.2017 at 8:10 pm from the Sub-Divisional Magistrate, Saharsa that three sons of one Sonelal Sah namely Ram Pravesh Sah, Ramdhan Sah and this appellant were indulging in illegal trade and smuggling of ganja. Acting on the said secret information a team was constituted headed by the Sub-Divisional Magistrate, Saharsa, Sub-Divisional Police Officer, Saharsa and other officials and police officials/personnel to conduct a raid. The house of Sonelal Sah was thereafter searched in the said night leading to recovery of 4 quintals 690 grams of ganja and a cash of Rs. 1,36,495/-. Two individual witnesses namely Rustam Ali (PW-4) and Md. Haidar Ali (PW-5) were requested to remain present during the course of search and seizure. A seizure list was prepared at the spot on which all the officials and independent witnesses put their signatures. The appellant was arrested on the spot in the house of Sonelal Sah, according to the prosecution’s case. Based on the allegation of the aforesaid effect, the FIR was registered against this appellant, Ram Pravesh Sah and Ramdhan Sah. It was not the prosecution’s case that Ram Pravesh Sah and Ramdhan Sah were present in the house at the time of search and seizure of the house. The appellant, according to the prosecution’s case was present in the house.
3. We will be dealing with relevant evidence in this regard while considering the depositions of the witnesses. We however, consider it apt to notice at this juncture itself that there is consistent evidence on record to the effect that this appellant resided in a house different from the house where the search was conducted. We also take note of the fact at the outset that we have not seen any evidence as regards the manner in which sample from the recovered articles was drawn for the purpose of the same being sent to Forensic Science Laboratory for chemical examination. Even according to the prosecution’s case the sample, in whatever manner drawn, was dispatched to the Forensic Science Laboratories at Patna and Kolkata on 13.02.2018 two and half months after seizure. The sample was received in the FSL Patna eight days thereafter, on 21.02.2018, which was sent through a chaukidar, a special messenger, according to the prosecution’s case.
4. Be that as it may, the police upon completion of investigation submitted charge-sheet against this appellant for commission of the offences punishable under Section 20(b)(ii) (C) and Section 22 of the N.D.P.S. Act. Final report was however submitted against two others namely, Ramdhan Sah and Ram Pravesh Sah. The special court took cognizance of the offences punishable under Section Section 20(b)(ii)(C) and Section 22 of the N.D.P.S. Act and proceeded against all the three persons who were named in the FIR. Charges were framed against all the three for commission of offences punishable under Section 22(c) of the N.D.P.S. Act. The appellant and the two co-accused persons denied the charge and claimed to be
Illegal trade and smuggling of Ganja – Failure on part of prosecution to produce seized articles as material exhibit at the trial in absence of any certification of its disposal, gives blow to prosec....
The prosecution must prove its case beyond reasonable doubt in NDPS Act cases, and non-compliance with statutory provisions vitiates the trial.
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