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2010 Supreme(Pat) 983
PATNA HIGH COURT
Shyam Kishore Sharma and Gopal Prasad JJ.
Md.Faiyaz Alam
Versus
State Of Bihar
CRIMINAL APPEAL No. 17 of 2009
Decided On : April 27, 2010
The violation of standing instructions by NCB does not make the evidence inadmissible unless it causes prejudice to the accused.
Headnote:
NDPS Act - Smuggling of Ganja - Sec.23
Fact of the Case:
The appellants were convicted for offences under Sec.23 of the NDPS Act for smuggling Nepali Ganja. The prosecution alleged that the complainant, an Intelligence Officer, intercepted a truck carrying 69 packets of Ganja and seized 1335 kgs of Ganja. The accused admitted their guilt and involvement in smuggling. The chemical analysis confirmed the seized material as Ganja. The trial court convicted the appellants based on the evidence.
Finding of the Court:
The court found that the prosecution had proved the possession of Ganja by the appellants. However, it noted that the sample was taken from only one packet out of the 69 seized packets, which was a violation of the standing instruction by NCB. The court modified the conviction under Sec.23 (b) of the NDPS Act for possession of Ganja more than small quantity and less than commercial quantity.
Issues: The key issues were whether the prosecution proved the possession of Ganja beyond reasonable doubt and whether the violation of the standing instruction by NCB affected the admissibility of the evidence.
Ratio Decidendi: The court held that the violation of the standing instruction by NCB did not vitiate the trial unless it caused prejudice to the accused. It also emphasized that the possession of Ganja from one packet was established, but the entire 1335 kgs recovered was not proven to be Ganja. The court modified the conviction based on the quantity of Ganja possessed by the appellants.
Final Decision: The court modified the conviction under Sec.23 (b) of the NDPS Act and sentenced the appellants to undergo the period already undergone in custody with a fine of Rs.25,000/- each.
Gopal Prasad, J.
1. Appellants have been convicted for offences under Sec.23 of the n. D. P. S. Act and has been sentenced to undergo rigorous imprisonment for 15 years and the fine of Rs.1,50,000/- (one lac and fifty thousand) to both the accused has been imposed and in default of payment of fine, have been ordered to further undergo rigorous imprisonment for two years.
2. The prosecution case, as alleged is that the complainant is a public servant working as Intelligence Officer at Directorate of Revenue Intelligence, muzaffarpur and is filing a complaint in official capacity alleging therein that on the basis of the specific information the complainant intercepted a truck bearing registration No. W. B.-O 3 - 0728 on 30.05.2003 along with occupant Md. Ali akbar and Faiyez Alam at National Highway 28 near Chanakya Hotel and 69 packet of Nepali Ganja weighing 1372 kgs. gross 1335 Kg. net recovered from the truck in presence of independent witnesses which was seized. The accused persons admitted their guilt and they also admitted their involvement in smuggling of Ganja which were being smuggled from Nepal to Bengal, Belurghat for money. During the enquiry, the sample of the seized Ganja was sent for chemical analysis to the Central Revenue Control Laboratory and it has been reported that the same is Ganja within the meaning of NDPS Act and during the enquiry on the said complaint the cognizance was taken on 01.08.2003 and subsequently the charge was framed on 22.06.2004 for offence under Sections 20, 23 and 25 of the NDPS act for having possession as well as importing and smuggling of Nepali Ganja respectively.
3. However, during the trial, seven witnesses were examined i. e. P. W.1 rajesh Kumar Srivastava, P. W.2 Rakesh Ranjan, P. W.3 Indradeo, P. W.4 deepak Kumar, P. W.5 Brajbhushan Kumar, P. W.6 Surendra Kumar, and P. W.7 laxmi Choudhary. The documentary evidence adduced as Ext.1 is the seizure memo, Ext.2 is the seizure list and Panchnama regarding recovery of Ext.3 is the confessional statement of co-accused Ali Akbar, Ext.3/1 is the confessional statement of Faiyez Alam recorded by Surendra Kumar Khatib and witness. Ext.4 panchanama, Ext.5 is the complaint petition, Ext.6 is the signature of seizure list. Signature of Surendra Kumar on seizure list (the material Ext.1 is the sample invalid of the seized Ganja), Exts.1, 2 and 6/3 is the signature of Surendra Kumar on recovery memo and Ext.6/4 to 6/7 is the signature of Surendra Kumar on statement of Ali Akbar and Ext.6 and 11 is signature of Surendra Kumar on statement of Faiyaz Alam. Ext.12 14 is the signature of Surendra Kumar on the statement of Fiyaz Alam and Panchnama. Ext.7 is the original test report, Ext.7/1 and 14 envelop of test report, Ext.8 certification by the Judicial Magistrate, Ext.9 is the disposal of the Ganja, Ext.9/3 is the certificate regarding the disposal.
4. After considering the submission of the parties as well as oral and documentary evidence adduced by the prosecution, the learned trial court convicted the appellants as stated above.
5. Learned amicus curiae, however, submitted that the Ganja was seized in several packets but the sample was neither taken from each of the packet separately nor there is evidence to suggest that samples were taken from each of the 69 packets or even Ganja from each packet taken and mixed together homogeneously. The sample was taken only from one packet which is violation of the standing instruction by NCB and further contended that it is violation of section 55 of the NDPS Act, hence entitle for benefit of doubt. The prosecution has not been able to prove the charges beyond the reasonable doubts and the appellants are not required to be convicted.
6. Learned counsel for the State submits that it is well established that the Ganja was seized from the truck and a sample was taken from the seized packets and hence since the seized packets of same and similar size and shape and hence, it shall be deemed that a
