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2018 Supreme(Pat) 166
IN THE HIGH COURT OF JUDICATURE AT PATNA
RAKESH KUMAR, ARVIND SRIVASTAVA, JJ.
Shyam Babu Singh @ Shya Babu Singh, S/o Late Sajawal Singh – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal (DB) No.832 of 2015
Decided On : 30-01-2018
For the Appellant :Sri. Shri. Prakash Tiwari, Advocate
For the Respondent: Dr. Mayanand Jha, A.P.P.
The main legal point established in the judgment is the requirement for strict compliance with statutory provisions, the need for the prosecution to establish a prima facie case before shifting the burden to the accused, and the fatal impact of non-production of seized material on the prosecution's case.
Headnote:
N.D.P.S. Act - Illegal Concealment of Ganja - Section 20(b) ii (c) of the N.D.P.S. Act - Summary: The court discussed the violation of statutory provisions contained in Section 42 and Section 52A of the N.D.P.S. Act, the requirement of strict compliance with procedures, and the burden of proof upon the accused. The court highlighted the importance of establishing a prima facie case before shifting the burden to the accused and emphasized the need for strict scrutiny and compliance with statutory requirements. The non-production of the seized material was considered fatal to the prosecution's case, leading to the setting aside of the judgment of conviction and sentence.
Fact of the Case:
The appellant was convicted for the illegal concealment of Ganja based on a written report submitted by a Probationer Sub Inspector of Police. The prosecution case relied on the evidence of the raiding party, but several contradictions and violations of statutory provisions were identified.
Finding of the Court:
The court found that the prosecution had completely violated the statutory provisions of the N.D.P.S. Act and failed to prove its case beyond all reasonable doubt. As a result, the judgment of conviction and sentence was set aside, and the appellant was directed to be released forthwith.
Issues: The issues included the lack of compliance with statutory provisions, contradictions in the evidence of the raiding party, and the non-production of the seized material in court.
Ratio Decidendi: The court emphasized the importance of strict compliance with statutory requirements, the need for the prosecution to establish a prima facie case before shifting the burden to the accused, and the fatal impact of non-production of seized material on the prosecution's case.
Final Decision: The judgment of conviction and sentence was set aside, and the Appeal was allowed. The appellant was directed to be released forthwith.
RAKESH KUMAR, J.
The present Appeal under Section 374(2) read with Section 389(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Cr.P.C.”) was preferred against the judgment of conviction and sentence passed in N.D.P.S. Case No. 29/21 of 2012/2015 (arising out of Raxaul P.S. Case No. 46 of 2012) passed by Shri Krishna Bihari Pandey, learned 3rd Additional Sessions Judge – cum – Special Judge, East Champaran, Motihari (hereinafter referred to as the “trial judge”). By the judgment dated 16.07.2015 the appellant has been convicted for commission of offence under Section 20(b) ii (c ) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “N.D.P.S. Act”) and by order of sentence dated: 23.07.2015 he has been directed to undergo rigorous imprisonment for twelve years with a fine of Rs. 1,25,000/- and in default of payment of fine amount, he has further been directed to undergo simple imprisonment for six months.
2. Short fact of the prosecution case is that on 06.03.2012 one Shri Ashok Kumar Singh, Probationer Sub Inspector of Police Raxaul Police Station, East Champaran submitted a written report to the Police Inspector –cum- Officer –In-Charge of Raxaul Police Station disclosing therein that on 06.03.2012 while he was in Police Station at about 11.00 A.M. he got secret information that in the village Gamhariya Shyam Babu Singh (appellant) had illegally concealed Ganja and Shyam Babu Singh ( appellant) was deeply involved with other 2-3 accused persons and he was trying to sale the said Ganja. To get the said information verified and taking necessary action, he along with probationer Sub Inspector of Police Amitesh (P.W.3), Probationer Sub Inspector of Police Dinesh Kumar Das (P.W.1) and Constable - Md. Bhuto (P.W. 2) proceeded for village Gamhariya through Government vehicle. On arrival in Gamhariya village near the house of Shyam Babu Singh (appellant ) in presence of two local independent witnesses namely: Dwarika Sah (not examined) and Birjeet Sah (not examined) following the procedure of search, searched double storied building of the appellant and in the said search on the ground floor he noticed that illegal Ganja wrapped in 10 big packets and 3 small packets were concealed in straw. He claimed that in presence of the said two independent witnesses he taken weight of the seized Ganja by weighing machine and on weighing it was found that bag of 10 bags were having 20 Kilograms of Ganja each and small bags were containing 10 Kilograms of Ganja each and on weighing total Ganja was about 230 Kilograms. After preparing seizure list in presence of two independent witnesses he obtained the signature of independent witnesses who voluntarily signed and thereafter he handed over one copy of the seizure list to the appellant. The appellant/Shyam Babu Singh was arrested and after arresting accused -Shyam Babu Singh (appellant) he was interrogated. In interrogation he disclosed that along with Farukh Ahmed, Abbas Mian and Suresh Yadav in the morning on the same day had brought illegal Ganja from Nepal which was concealed by him. The informant in its written report further stated that arrested Shyam Babu Singh (appellant) disclosed that other three persons had gone to Gamhariya market with a view to contact merchant for sale of the seized Ganja. On the basis of information provided by the apprehended person (appellant ) the informant with the raiding party went to Gamhariya Bazar where he saw that all the three persons were sitting on Chowk near the temple and after noticing police party they started fleeing away. However, after chase, all the three persons were arrested and on interrogation they disclosed their name as: Farukh Ahmed, Abbas Mian and Suresh Yadav. The informant claimed that all the three apprehended accused persons accepted before him that in the morning with the appellant they had brought the said illegal Ganja from Nepal and it was concealed in the
