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PATNA HIGH COURT
R.N.Sahay, J.
Noor Mohammad, Noor Mohamad Ansari
Versus
State Of Bihar
Criminal Appeal No. 146 of 1997 ;
Decided On : DECEMBER 15, 1998
Narcotic Drugs and Psychotropic Substances Act - Conviction under Sec. 23 - Sec. 42, Sec. 110 of the Customs Act, 1962 and Sec. 3 (1) of the Import-Export (Control) Act, 1947 - Sec. 50 (1) - Sec. 52 (2) - Sec. 20 (b) (ii) - Sec. 52 and 57 - Compliance with mandatory provisions, chemical examination, and search and seizure procedures discussed by the court.
Fact of the Case:
The appellant was convicted under Sec. 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of charas. The prosecution's case was based on the recovery of charas from the appellant's possession by the Customs department. The appellant claimed to be falsely implicated and raised procedural non-compliance issues.
Finding of the Court:
The court found discrepancies in the search and seizure procedures, non-compliance with mandatory provisions, and lack of evidence regarding the nature of the seized substance. The court concluded that the conviction and sentence of the appellant could not be sustained.
Issues: The issues included the validity of the search and seizure procedures, compliance with mandatory provisions of the Act, and the lack of evidence regarding the nature of the seized substance.
Ratio Decidendi: The court emphasized the importance of compliance with mandatory provisions, proper chemical examination, and adherence to search and seizure procedures. The court also highlighted the significance of evidence to establish the nature of the seized substance.
Final Decision: The appeal was allowed, and the conviction and sentence of the appellant were set aside. The appellant was ordered to be released forthwith if not wanted in any other case.
R.N.Sahay, J.
1. Appellant Noor Mohammad has been convicted under Sec. 23 of the Narcotic Drugs and Psychotropic Substances Act. 1985, and has been sentenced to ten years imprisonment and to pay a fine of Rs. One lakh by the learned Sessions Judge. West Champaran in Sessions Trial No. 16/93.
2. The case of the prosecution against the appellant can be - gathered from the report of Bhagirath Rat Inspector Customs (P) Division. Motihari, dated 14-6-1993., The said report is quoted hereunder:
"On receipt of a secret information regarding presence of Shri Noor Mohammad, son of Gafoor Mian of village Barbat Sena, Bettiah Muffasil, West Champaran on 13-6-1993 a team of officers and staff of Customs (Prev.) Motihari rushed to village. Barbat Sena said Shri Noor Mohammad was found sitting near his neighbour home who soon after the sight of Customs staff tried to fled away but due to alertness of the Customs staff he could not escape and apprehended by them sensing the interference and other obstruction by his family members and villagers. They have taken him in Govt. Jeep and drove away from the village immediately. The said Noor Mohammad s/o Gafoor Mian was brought to Customs office. Motihari. Then two independent witness were called on by us from the nearby locality to witness the search of the person of Shri Noor Mohammad. On search a small piece of Nepali charas was recovered from right side pocket of his shirt worn by him before the independent witnesses. On enquiry from him he had informed that he had kept the said piece of charas for use as sample and to obtain the orders for sale from different customers. The recovered charas was weighed before the independent witnesses which was found 40 gms. in stick form only. The details of the recovered charas were recorded into the Panchnama and seizure memo No. 655 dated 13-6-1993 in the presence of Noor Mohammad and two independent witnesses. The said recovered charas was seized under Sec. 110 of the Customs Act, 1962 and Sec. 42 of N.D.P.S. Act, 1985 for violation of the provision of Sec. 8 of the N.D.P.S. Act. 1985 read with Sec. 11 of the Customs Act, 1962 and Sec. 3 (1) of the Import-Export (Control) Act, 1947. Out of the above seized quantity of the recovered charas, two representative sample of the same were kept in the two envelopes and sealed before Noor. Mohammad and two independent witnesses which was duly signed by them and thumb impression by Noor Mohammad. A confessional written statement of said Noor Mohammad was also obtained in presence of two independent witnesses. Thereafter said Noor Mohammad was produced before the Supdt. Customs (Prev.), Motihari for interrogation on 13-6-1993. After completion of interrogation said Noor Mohammad was arrested by me on 14-6-1993 under Sec. 104 of the Customs Act 1962 and Sec. 42 of N.D.P.S. Act. 1985 for violation of the N.D.P.S. and Customs Act as referred to above. Thereafter said Shri Noor Mohammad was taken to the Court of District and Sessions Judge. West Champaran. Bettiah for remanding into judicial custody on 14-6-1993. The said Noor Mohammad was absconding and. evading arrest in this office case No. 29/93 dated 17-3-1993 for which the honourable Court had also issued warrant of arrest against him after registering a case No, 3/0C/93 on the basis of F.I.R. Lodged by Assistant Collector, Customs (P) Motihari against him. After having sufficient reason to believe that said Noor Mohammad is a habitual smuggler and doing transaction in Narcotic drugs. He has been arrested and sent for judicial custody for the offences committed by him under N.D.P.S. Act, Customs Act and Import-Export (Control) Act as referred to above."
3. The defence of the appellant was that he has been falsely implicated in this case by plantation at the hands of the authority of the custom department on the background that on earlier the authorities of the custom department attempted to implicate the accused in the case relating to the recovery of 70
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