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2016 Supreme(Pat) 1081
IN THE HIGH COURT OF JUDICATURE AT PATNA
GOPAL PRASAD, J.
Jai Prakash Singh son of Late Vishundeo Singh - Appellant
Versus
The State of Bihar - Respondent
Criminal Appeal (SJ) No. 687, 646 of 2015
Decided On : 22-06-2016
For the Appellant : Mr. Jagannath Singh, Mr. Gagendra Pd. Yadav, Mr. Sanjay Parasmani, Mr. Manoj Kumar
For the State : Mr. Bipin Kumar, Mr. Z. Hoda
The judgment establishes that the prosecution must prove charges beyond reasonable doubt and comply with procedural requirements under the N.D.P.S. Act to secure a conviction.
Headnote:
N.D.P.S. - Conviction under Section 20(B)(ii)(C) - Summary of Acts and Sections: N.D.P.S. Act, Section 20(B)(ii)(C)
Fact of the Case:
The appellants were convicted for possessing illegal ganja based on a raid conducted by the police. The prosecution alleged that 40 packets of ganja were recovered from the appellants' possession during the raid.
Finding of the Court:
The court found that the prosecution failed to prove the charges beyond reasonable doubt. It highlighted violations of procedural requirements under the N.D.P.S. Act, including the lack of proper sealing and certification of the seized article and the absence of compliance with Section 52A of the Act.
Issues: Violation of procedural requirements under the N.D.P.S. Act, failure to prove charges beyond reasonable doubt
Ratio Decidendi: The court emphasized that the prosecution's failure to comply with procedural requirements and the absence of material evidence undermined the legality of the conviction under Section 20(B)(ii)(C) of the N.D.P.S. Act.
Final Decision: The order of conviction and sentence recorded by the trial court was set aside, and the appeals were allowed. The appellants were to be set at liberty forthwith if not required in any other case.
GOPAL PRASAD, J.
Heard learned counsel for the appellants and learned counsel for the State.
2. Two appeals are being heard together and disposed of by common judgment against the judgment of conviction dated 05.08.2015 and order of sentence dated 07.08.2015 passed by Shri Ramesh Chandra Dwivedi, learned 3rd Additional Sessions Judge, Bhojpur at Ara, in N.D.P.S. Case No. 14 of 2011 (arising out of Udwant Nagar Police Station Case No. 262 of 2011) by which both the appellants have been convicted for offence under Section 20(B)(ii)(C) of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for ten years and payment of fine of Rs. 1,00,000/- and in default of payment of fine further sentenced to undergo additional simple imprisonment for one year.
3. The prosecution case as alleged in the First Information Report on the basis of self statement of Sushil Kumar, S.H.O. Gajrajganj O.P. (P.W.2) alleging therein that on 27.09.2011 at about 6.00 A.M. he received information that two persons were going to Nawadaben from Ara by a hired Tempo and they have possessed illegal Ganja. On the said information he recorded a Sanha and he proceeded with along with Executive Magistrate Mustak Ahmad who was present in the police station at that time as well as S.I. Vikash Kumar, A.S.I. Gajendra Prasad Yadav (not examined) and Constable Ram Awatar Singh, P.W. 3, Constable Santosh Kumar Singh, P.W.7, Constable Ashutosh Kumar, P.W. 1 and Constable Harishankar Manjhi, P.W. 5 reached at Milki Petrol Pump at about 7.00 A.M. then saw that a tempo was coming from Ara and stopped in which two persons were sitting in military dress and identity card bearing photo and two persons were sitting in driving seat and they disclosed their names as Madhesh Yadav and Munna Kumar Yadav and told that Madhesh Yadav is driver and Munna Kumar Yadav was Khalashi of the said tempo. Further they disclosed that both the military men hired tempo for Rs. 200/-. Further it is alleged that two persons were sitting in the tempo possessed with two big bags and one bedding and they disclosed their names as Jai Prakash Singh and Umesh Singh. They disclosed that they were coming from Orissa and going to their respective homes. Thereafter, on search of deep brown coloured bag 14 packets containing 1 K.G. per packet each of alleged ganja recovered and from another chitkabra colloured bag 12 packets containing 1 K.G. Ganja each recovered and from green colour bedding 14 packets ganja each containing 1 K.G. was recovered. Thus in total 40 packets ganja each containing 1 K.G. total 40 K.G. ganja was recovered. Thereafter, seizure list was prepared before two independent witnesses Madhesh Yadav and Munna Kumar Yadav and seizure list was duly signed. Further Jai Prakash Singh and Umesh Singh did not produce any chit of paper regarding possession of the said ganja. On the basis of self statement of S.H.O. Sushil Kumar, F.I.R. lodged and consequently investigation was handed over to Vikash Kumar, Sub Inspector.
4. During the investigation, I.O. inspected the P.O. and recorded statement of witnesses, perused the seizure list and took out sample from seized article and sent to F.S.L. Thereafter, on receipt of F.S.L. report, charge sheet submitted. After submission of charge sheet, cognizance was taken and case proceeded after framing of the charge.
5. During trial nine witnesses were examined by the prosecution. P.W.1 is Ashutosh Kumar, Constable and a member of the raiding party who supported the prosecution case that they proceeded and a tempo was apprehended and from the said tempo two persons were apprehended with bags and bedding and from the said bags and bedding 40 K.G. ganja was recovered. Seizure list prepared. P.W.2 is Sushil Kumar, the informant who had supported the prosecution case and on his self statement F.I.R. lodged. He deposed that he received information that a tempo was coming and from the said tempo alleged ganja is being transported. He constituted a team a
