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2017 Supreme(Pat) 950
IN THE HIGH COURT OF JUDICATURE AT PATNA
SAMARENDRA PRATAP SINGH, PRAKASH CHANDRA JAISWAL, JJ.
Bhulan Das @ Bhulan Ravidas – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal (DB) Nos. 897 & 944 of 2011
Decided On : 28-07-2017
For the Appellant : Mr. Dhirendra Kumar Sinha.
For the Respondent: Mr. A.K. Sinha.
The main legal point established is that in cases under the NDPS Act, strict compliance with mandatory provisions is essential, and failure to do so can lead to serious doubts about the prosecution's case.
Headnote:
NDPS Act - Conviction under Section 20(b)(ii)(c) and Section 25 - [Section 20(b)(ii)(c), Section 25]
Fact of the Case:
The appellants were convicted under Section 20(b)(ii)(c) and Section 25 of the NDPS Act for possession of Ganja. The prosecution's case was based on the recovery of Ganja from the appellants' houses during a police raid.
Finding of the Court:
The court found that the prosecution failed to establish the case beyond all reasonable doubt. It noted procedural irregularities, lack of witness support, and non-compliance with mandatory provisions of the NDPS Act, leading to serious doubts about the seizure and custody of the contraband. The court concluded that the appellants were entitled to the benefit of doubt and allowed their appeals, directing their release.
Issues: The key issue was whether the prosecution had proven the charges against the appellants beyond all reasonable doubt.
Ratio Decidendi: The court's decision was based on the lack of conclusive evidence, procedural irregularities, and non-compliance with mandatory provisions of the NDPS Act, leading to serious doubts about the seizure and custody of the contraband.
Final Decision: Both appeals were allowed, and the appellants were directed to be released from custody.
PRAKASH CHANDRA JAISWAL, J.
1. Both these appeals cropped up from the same Special Case No. 24 of 2009 have been heard together for final disposal.
2. Both these appeals have been preferred against the judgment of conviction dated 29.07.2011 and order of sentence dated 05.08.2011, passed by the learned Additional Sessions Judge-VII, Patna, whereby the appellants have been convicted under Section 20 (b)(ii)(c) and Section 25 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter in short referred as NDPS Act). The appellants have been sentenced for the offence under Section 20(b)(ii)(c) of the NDPS Act to undergo rigorous imprisonment for 15 years along with a fine of Rs. 1.5 lac each and in default of payment of fine to further undergo three years R.I. Both the convicts were further sentenced to undergo 15 years R.I. and slapped with a fine of Rs. 1.5 lac each under Section 25 of the NDPS Act and in default of payment of fine, to further undergo three years R.I. All the sentences were directed to run concurrently.
3. The prosecution case, in brief, is that on 25.03.2009 the informant, Hari Shankar Jha (PW-5) Sub-Inspector of Fatuha Police Station received secret information that huge quantity of Ganja has been concealed in the houses of the appellants, Gariban Ravidas and Bhulan Ravidas. On this information, informant along with Probationer Additional Superintendent of Police, Daljit Singh and other police personnel reached near the house of the appellants. Seeing the police party people started escaping. Thereafter, in presence of the independent witnesses, namely, Umesh Kumar (DW-1) and Dhanesh Das (not examined) the house of the appellants were searched. During search 20 packets of Ganja wrapped in plastic was recovered from the house of Gariban Das. The ganja weighed 280 Kg. On search of house of Bhulan Das, 21 packets of Ganja wrapped in plastic bag along with two mobiles was recovered from his house. On measurement, the ganja weighed 294 Kg. Seizure list (Ext.1) of the contraband articles was prepared in presence of the independent witnesses. As both the accused persons as well as their family members were absconding, copy of the seizure list could not be handed over to them.
4. On the basis of the self-statement of Hari Shankar Jha (PW-5) Sub-Inspector of Fatuha Police Station, a formal F.I.R. was registered under Section 20/22 of the NDPS Act against both the appellants. On the basis of F.I.R. and charge-sheet, cognizance was taken under Section 20/22 of the NDPS Act. The case was transferred to the Court of Additional District and Sessions Judge 7th, Patna for trial. During course of trial, charges under Section 20(b)(ii)(c) and 25 of the NDPS Act were framed against the appellants, to which they pleaded not guilty and claimed to be tried.
5. During course of trial, the prosecution has been able to examine altogether five prosecution witnesses. PW-1 Bharat Singh, Sub-Inspector of Police and member of the raiding party, PW-2 Pramod Kumar Roy, the Officer-in-Charge of Fatuha Police Station and member of the raiding party, PW-3 Daljit Singh, the then Deputy Superintendent of Police and a member of raiding party and I.O. of the case as well, PW-4 Arjun Prasad Yadav, A.S.I. was also a member of the raiding party and PW-5 Hari Shankar Jha, the informant and member of the raiding party.
6. The statements of the appellants were recorded under Section 313 of the Cr.P.C. The case of defence is complete denial of the occurrence. The appellants examined one witness, namely, Umesh Kumar as DW-1 in defence.
7. After hearing the parties and perusing the record, the learned lower trial court convicted the appellants for the offences punishable under Section 20(b)(ii)(c) and 25 of the NDPS Act and sentenced them as mentioned in earlier paragraphs. Being aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence, the appellants have filed aforesaid two separate appeals.
8. The point for con
