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2017 Supreme(Pat) 1329
IN THE HIGH COURT OF JUDICATURE AT PATNA
KISHORE KUMAR MANDAL, VINOD KUMAR SINHA, JJ.
Neck Mohammad @ Raj Mohammad @ Nek Mohammad – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal (DB) No. 229 of 2014
Decided On : 19-12-2017
For the Appellant : Mr. Vijay Shankar Srivastava.
For the Respondent: Mr. Satya Narayan Prasad.
The central legal point established in the judgment is the importance of following the prescribed procedures under the Narcotic Drugs and Psychotropic Substance Act, especially when there is a stringent punishment and the reverse burden on the accused. The judgment emphasized the need for substantial compliance with the provisions, the production of material exhibits in court, and the credibility of the prosecution case.
Headnote:
Narcotic Drugs and Psychotropic Substance Act - Conviction under Section 18(b) - Sections 15, 17, 18, 21, 22, 23, 24 - The court discussed the provisions of Sections 42 and 50 of the Act, compliance with Section 57, Section 52A, and Standing Orders issued under the Act. It highlighted the importance of following the prescribed procedures under the Act, especially when there is a stringent punishment, and the reverse burden on the accused. The judgment emphasized the need for substantial compliance with the provisions, the production of material exhibits in court, and the credibility of the prosecution case.
Fact of the Case:
The appellant was convicted under Section 18(b) of the Narcotic Drugs and Psychotropic Substance Act for possession of opium. The prosecution case involved the arrest of the appellant and the recovery of opium packets tied around his waist. The trial court found the evidence reliable and convicted the appellant.
Finding of the Court:
The court analyzed the evidence and highlighted discrepancies and inconsistencies in the handling of seized articles, non-compliance with procedural requirements, and the suspicion surrounding the FSL report. It concluded that the judgment of conviction suffered from several infirmities and inconsistencies, rendering it unsustainable in the eye of the law.
Issues: Non-compliance with procedural requirements, discrepancies in handling seized articles, suspicion surrounding the FSL report, and the sustainability of the judgment of conviction.
Ratio Decidendi: The judgment emphasized the importance of following the prescribed procedures under the Act, the need for substantial compliance with the provisions, and the credibility of the prosecution case. It highlighted that the reverse burden on the accused applies only when recovery has been made as per established principles of law and when compliance with various provisions of law has been followed.
Final Decision: The appeal was allowed, and the judgment of conviction and the order of sentence of the appellant were set aside. The appellant was directed to be released forthwith.
VINOD KUMAR SINHA, J.
1. Sole appellant stands convicted under Section 18(b) of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as "the Act"). However, he has been acquitted from the charge under Section 23(c) of the Act. Appellant has been sentenced to undergo rigorous imprisonment for a term of 12 years and a fine of Rs. 1,00,000/- with default clause. It is also made clear that one of the co-accused, namely, Ramanand Patel, has been acquitted from the charge after trial.
2. The prosecution case as it appears from the FIR is that the informant (PW-1), Police Inspector of Raxaul Police Station, received information about a criminal, standing near Manokamana temple, on which he went there along with police party, arrested the criminal and on search six packets were recovered from him and on opening of the packets it was found that opium was kept in packets. It further appears that seizure list was prepared at the place of arrest itself and the seized articles were taken to the police station.
3. On the basis of the aforesaid self statement of the Police Inspector (Informant-PW-1), Raxaul P.S. Case No. 137 of 2010 has been registered under Sections 15, 17, 18, 21, 22, 23 and 24 of the Act. It further appears that during investigation involvement of one co-accused, Ramanand Patel, was also found and police submitted charge-sheet against him.
3.1 It further appears from perusal of the record that the appellant along with the seizure list was produced before the court of the Chief Judicial Magistrate, East Champaran at Motihari. It also appears from the record that on 28.9.2010 a requisition was made to the Special Judge for authorizing a Magistrate for preparation of sample and also for sending the same to the Forensic Science Laboratory. It also appears that after completion of investigation charge sheet has been submitted.
4. Record further shows that cognizance has been taken and case was numbered as NDPS Case No. 43 of 2010. Similarly, case of Ramanand Patel has been numbered as NDPS Case No. 122 of 2010. Charges were framed against the appellant in NDPS Case No. 43 of 2010 and against co-accused Ramanand Patel in NDPS Case No. 122 of 2010. However, later on both the cases of appellant and the accused Ramanand Patel have been amalgamated and has been disposed of by the common judgment and order.
5. During trial four witnesses have been examined on behalf of the prosecution, they are PW-1, Sanjay Kumar Singh (Informant-cum-Inspector of Police-cum-Officer-in-Charge, Raxaul Police Station), PW-2, Baneshwar Kishku (Assistant Sub-Inspector of Police), PW-3, Lalan Prasad (Sub-Inspector of Police and PW-4, Uma Shankar Singh (Investigating Officer).
6. Apart from that, following documents have also been produced before the court: Ext.1, seizure list, Ext.2, written report, Ext.3, FIR, Ext.4, confessional statement of the appellant, Ext.5, requisition letter dated 29.8.2010 for chemical examination of the seized articles, Ext.6, forwarding letter dated 29.8.2010 for chemical examination, Ext.7, forwarding of the confessional statement of the appellant and Ext.8, chemical examination report dated 8.9.2011 of Forensic Science Laboratory, Patna.
7. The trial court having considered the evidence adduced on behalf of the prosecution and found the same reliable and also considering the report of FSL, convicted the appellant under Section 18(b) of the Act and sentenced him, as stated above.
8. Learned counsel for the appellant has submitted that in this case that there is non-compliance of the provisions of Section 42 and 50 of the Act as in spite of receiving the report the same has not noted down and no information was given to the Superior Officer, as provided under Section 42 of the Act and further before search of the appellant, he has not been asked as to whether he desires to be searched before a Magistrate or a Gazetted Officer, as provided under Section 50 of the Act, which are mandatory in nature.
9. Howe
