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2014 Supreme(Pat) 845
IN THE HIGH COURT OF JUDICATURE AT PATNA
GOPAL PRASAD, J.
(26.9.2014)
Criminal Appeal (SJ) No. 859 of 2012
Arising out of PS Case No. 97 year-2008 Thana-null District-Vaishali (Hajipur).
Ashok Roy @ Ashok Kumar Rai & Anr. : Appellants
Vs.
The State of Bihar : Respondent
For the Appellant : Mr. Jitendra Narain Sinha.
For the Respondent: Mr. S.B. Verma.
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985–Sections 20(b) & 22 read with Sections 42 & 43–Smugling of ganja–the investigating officer got information while she was in patrolling duty, it was difficult to record the same before proceeding for the search or checking the vehicle, hence, the non–compliance of Section 42(1) of the Act is not fatal–moreover, she got information while in patrolling and the jeep which was apprehended on road, a public place and was in transit, i.e., in moving position when it was apprehended and the recovery was from public place, the road, hence, it can well be inferred that action taken was not under Section 42 of the Act, but, under Section 43 of the Act and so requirement of Section 42 of the Act is not required to be completed. (Paras 18 & 22)
Narcotic Drugs and Psychotropic Substances Act, 1985–Sections 52, 55 and 56–Smuggling of ganja–was kept under a seal, there is no material of show that the sample was taken after taking permission of the Magistrate and there is no evidence that the sample was taken from each of the packets–It is true that provisions of Sections 52, 55 and 56 of the Act are not mandatory in nature, but it has the effect on the appreciation of evidence–safeguard provided having not been complied with, a serious doubt is cast on the prosecution case–Conviction and sentence set aside. (Para 23)
2013 (3) PLJR 87, AIR 2009 SC 1378, 1974 (3) SCC 299, 1999 (6) SCC 172, 2000 (2) SCC 513, 2001 (6) SCC 692, 2009 (4) PLJR (SC) 135, 2009 (4) PLJR (SC) 128, AIR 2003 SC 4311, 2008 (2) SCC 370–Referred to.
2. The appellants have been convicted under Sections 20(b) and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as, ‘the Act’) and sentenced to undergo rigorous imprisonment for ten years with a fine of rupees one lakh for offence under Sections 20(b) and 22 of the Act for each count and in default of payment of fine to undergo, further, rigorous imprisonment for two years and it has been ordered that the sentences will run concurrently.
3. The prosecution case, as alleged by the informant, Sub Inspector of Police, Sadhna Singh, Officer-in-Charge, of Bidupur Police Station that on 23.06.2008 she proceeded for patrolling along with the police party in jeep at about 01.00 p.m. from the Police Station and reached at Afrol Chowk at 04.00 p.m., then, got information from spy that a white Armada Jeep, bearing registration no. GJ-1HH- 0032 is coming, which is filled with ganja. For verifying the information, she started checking of the vehicle at Afrol Chowk, N.H. 103, Bidupur-Jandaha main road. At about 05.15 p.m. a while jeep was coming from west was given the sign to stop and on seeing the police, the driver of the said jeep turned the vehicle back and tried to flee away, but, the jeep was apprehended and surrounded which appeared the same jeep, as mentioned above, and besides driver one more person was seen seated on the front seat and they disclosed their names as Ashok Rai @ Ashok Kumar Rai and Ranjeet Das @ Ranjeet Kumar Das and from the said jeep a stringent bundle come out and three plastic packets on the middle seat were seen, then, in presence of the witnesses, Santosh Kumar and Chowkidar, Birchand Paswan, the gate of the jeep was opened and, then, on the middle seat three packets wrapped in a blue plastic was found. Three gunny bags found in dickey. The search was made in presence of two witnesses, one packet was opened and on enquiry from both the accused persons they disclosed that it is ganja. In the three gunny packets, each contained three packets of ganja weighing about 8 Kg each. Three blue plastic packets, each containing about 8 Kg weight were seized along with the jeep, seizure list prepared and the articles seized and two persons were on jeep arrested and first information report lodged on the written report. The seizure list of the seized articles and the investigation proceeded.
4. During the investigation, the sample was sent for chemical examination to Forensic Science Laboratory and after receiving the report, charge sheet submitted cognizance taken thereof the charge was framed.
5. During the trial fourteen witnesses were examined. P.W. 1 is Jeevan Rai, P.W. 2 is Naresh Rai, P.W. 3 is Basu Sakunath Rai, P.W. 4 is Jeevach Rai, P.W. 5 is Santosh Kumar Gupta, P.W. 6 is Gorakh Nath Singh, the investigating officer, P.W. 7 is Resham Kumar Yadav, P.W. 8 is Sadhs Singh, the informant, P.W. 9 is Mahesh Paswan, Chowkidar of Choura Desri Thana, P.W. 10 is Birchand Paswan, Chowkidar of Desri Thana, seizure list witnesses, P.W. 11 is Vijay Kumar Singh, Sub Inspector of Police, Probation, P.W. 12 is the Assistant Director, Forensic Science Laboratory, P.W. 13 is Ram Bachan Singh, the then Havildar, Desri Police Station and member of the raiding party and P.W. 14 is Arun Kumar, the driver.
6. the documentary evidence adduced are Exhibits 1, the signature of Mahesh Kumar Gupta, seizure list witness, Exhibit 2 is the written report, Exhibit 3 is the seizure list, Exhibit 4 is series of confession of the accused, Ashok Kumar, Exhibit 5 is the formal first information report, Exhibit 6 is by one in the signature of Suresh Paswan on Forensic Science Laboratory report, Exhibit 6/1 is the signature of Dr. Shyam Bihari Choudhary of Forensic Science Laboratory and Exhibit 7 is the Forensic Science Laboratory report.
7. The learned counsel for the appellant, however, has challenged the order of conviction and sentence.
