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2016 Supreme(Pat) 413
IN THE HIGH COURT OF JUDICATURE AT PATNA
ANJANA PRAKASH & RAJENDRA KUMAR MISHRA, JJ.
Rudal Yadav – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal (DB) Nos. 104, 143, 147, 778 of 2011
Decided On : 12-01-2016
For the Appellant :Mr. Dhirendra Kumar Sinha, Advocate.
For the State : Mr. D.K. Sinha, A.P.P.
The prosecution must conclusively prove the nature of recovered articles and the ownership of the premises to sustain a conviction under the NDPS Act.
Headnote:
NDPS Act - Conviction under Section 20 (b) (ii) (C) and Sections 20/29 - NDPS Act - [Section 20 (b) (ii) (C), Section 20/29] - The court found that the prosecution failed to conclusively prove that the recovered articles were Ganja, leading to the unsustainability of the conviction. Additionally, there was no conclusive evidence that the houses belonged to the appellants, resulting in the setting aside of the judgment and order of conviction.
Fact of the Case:
The appellants were convicted under the NDPS Act for possession of Ganja based on raids conducted at their houses. However, the prosecution failed to conclusively prove the recovered articles were Ganja and the ownership of the houses was not established.
Finding of the Court:
The court found that the prosecution failed to prove conclusively that the recovered articles were Ganja and that the houses belonged to the appellants, leading to the unsustainability of the conviction.
Issues: Failure of prosecution to prove the nature of the recovered articles and the ownership of the houses.
Ratio Decidendi: The prosecution must conclusively prove the nature of recovered articles and the ownership of the premises to sustain a conviction under the NDPS Act.
Final Decision: The appeals were allowed, and the judgment and order of conviction were set aside. The appellants in jail custody were directed to be released, and the appellant on bail was discharged from the liabilities of his bail bonds.
ANJANA PRAKASH, J.
1. Heard learned counsel for the Appellants and learned counsel appearing of behalf of the State.
2. Three Appellants namely, Sheoshankar Yadav, Deo Nandan Yadav of Cr. Appeal (DB) No. 778 of 2011, Sita Ram Yadav of Cr. Appeal (DB) No. 147 of 2011 have been convicted under Section 20 (b) (ii) (C) of NDPS Act and sentenced to rigorous imprisonment for 15 years and a fine of Rs.1,00,000/- in default of which further two years rigorous imprisonment, Appellant Pankaj Nigam @ Sonu Kumar of Cr. Appeal (DB) No. 143 of 2011 and Appellant Rudal Yadav of Cr. Appeal (DB) No. 104 of 2011 have been convicted under Sections 20/29 of the NDPS Act and sentenced to rigorous imprisonment for 15 years and a fine of Rs.1,00,000/- in default of which further two years rigorous imprisonment by a Judgment and order of conviction dated 21/24.12.2010 passed by the Additional Sessions Judge-XI, Patna, in Special Case No. 38 of 2006.
3. The case of the Informant, Ramakant Prasad (PW-1) who was the Officer-in-Charge of Kankarbagh Police Station, is that on 2.8.2006, he arrested Pankaj Nigam @ Sonu Kumar, Appellant of Cr. Appeal (DB) No. 143 of 2011 in connection with another case who confessed his guilt and also that he indulged in sale and purchase of Narcotic products. On his pointing out, houses of Doman Mian, Deo Nandan Yadav, Shiv Shankar Yadav and Sita Ram Yadav were raided and huge quanity of Ganja was recovered from each of the houses. In none of the house, any of the Appellants were present. Three persons who were seen fleeing away from the house of Doman Mian, out of whom the Appellant Rudal Yadav was caught but from his possession, no incriminating article was recovered.
4. During Trial, the Prosecution examined nine witnesses. PW-1, Informant, in his statement in Court, stated that he had arrested Appellant Pankaj Nigam @ Sonu Kumar in connection with another case and on his pointing out, the houses of Appellants Deo Nandan Yadav, Shiv Shankar Yadav, Sita Ram Yadav and one Doman Mian were raided. The search had been conducted after raiding team was constituted from various Police Stations. He stated that from the house of Doman Mian, 90 Kg. of Ganja, wrapped in a plastic bag was recovered, of which a seizure list was prepared in the presence of two witnesses and the Appellant Pankaj Nigam @ Sonu Kumar. In course of search in the house of Doman Mian, one person was caught fleeing away who disclosed his name as Appellant Rudal Yadav, and that of Pintu Rai and Dharmendra Kumar who succeeded in fleeing away. Further, on the statement of the Appellant Pankaj Nigam @ Sonu and Rudal Yadav, search was conducted in the house of Appellant Deo Nandan Yadav, but none was present there. It was stated that 150 Kg. of Ganja wrapped in a plastic bag from one of the rooms was recovered, of which a seizure list was prepared in the presence of the witnesses and two accused persons. Then the house of Appellant Shiv Shankar Yadav was searched on the statement of these two Appellants and from his house, 180 Kg. of Ganja again wrapped in a plastic bag was recovered, of which, a seizure list was prepared. On the statement of Appellant Pankaj Nigam @ Sonu and Rudal, the house of Appellant Sita Ram Yadav was searched and from his house, 180 Kg. of Ganja wrapped in a plastic bag was recovered of which a seizure list was prepared. It was stated that after the institution of the First Information Report, the investigation was handed over to another Police Personnel. He identified the seizure list as Ext.-1 series and Fard beyan as Ext.-2. He stated that he had not made any independent enquiry with regard to the ownership of the houses and it was on the statement of Pankaj Nigam @ Sonu that it was believed that the houses belonged to them and were searched. He stated that the sample was sealed in an envelope on which signature of some witnesses were taken. He stated that he had no paper records with regard to the ownership of the house nor they di
