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2018 Supreme(Pat) 171
IN THE HIGH COURT OF JUDICATURE AT PATNA
RAKESH KUMAR, ARVIND SRIVASTAVA, JJ.
Bachan Sah Son of Late Jodhan Sah – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal (DB) No. 341, 313 of 2015, 946 of 2014
Decided On : 29-01-2018
For the Appellants : Mr. Santanu Sagar, Adv., Mr. Rishikesh Ojha, Adv., Mr. Anil Kumar Mishra, Adv.
For the Respondent: Mr. Mayanand Jha (A.P.P.), Mr. Ajay Mishra (A.P.P.)
The main legal point established in the judgment is the requirement for the prosecution to establish a prima facie case and the fatal impact of non-production of seized articles on the prosecution's case.
Headnote:
NDPS Act - Conviction under Section 22(C) - 1985 - [SUMMARY OF ACTS AND SECTIONS REFERENCED] - The court discussed the violation of Section 42(1) of the NDPS Act, the requirement of strict compliance with statutory procedures, and the burden of proof on the prosecution. The judgment highlighted the necessity for the prosecution to establish a prima facie case and the fatal impact of non-production of seized articles on the prosecution's case. The court also emphasized the importance of complying with Section 42 and 50 of the NDPS Act.
Fact of the Case:
The appellants were convicted and sentenced under Section 22(C) of the NDPS Act for smuggling Ganja. The prosecution's case was based on the recovery of Ganja from the appellants' premises following a raid conducted by the police.
Finding of the Court:
The court found that the prosecution failed to establish its case beyond all reasonable doubt. It highlighted the violation of Section 42(1) of the NDPS Act, inconsistencies in the prosecution's case, and the non-production of seized articles, which led to the setting aside of the judgment of conviction and sentence.
Issues: The issues included the violation of statutory provisions, the burden of proof on the prosecution, and the impact of non-compliance with procedural requirements on the case.
Ratio Decidendi: The court emphasized the necessity for the prosecution to establish a prima facie case, the strict compliance with statutory procedures, and the fatal impact of non-production of seized articles on the prosecution's case.
Final Decision: The judgment of conviction and sentence was set aside, and all three appeals were allowed. The appellants were directed to be released from jail.
RAKESH KUMAR, J.
In aforesaid three appeals, all the appellants were convicted and sentenced in Trial No. 71 of 2010 (arising out of Gopalpur P.S. Case No. 73 of 2010) and as such, all the three appeals were heard together and are being disposed of by this common judgment.
2. Appellant Bachan Sah (in Cr. Appeal DB No. 341/15) has been convicted under Section 22(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’) and sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 1,00,000/- (one lac). In default of payment of fine, the appellant Bachan Sah was further directed to undergo imprisonment for six months, whereas, two appellants i.e. Yamuna Sah @ Jamuna Sah (in Cr.Appeal DB No. 946/14) and Ainul Dhobi (in Cr.Appeal DB No. 313/15) were also convicted for offence under Section 22 (C) of the NDPS Act and both have been directed to undergo rigorous imprisonment for 12 years with fine of Rs. 1,20,000/- (one lac & twenty thousand) each. In default of payment of fine, they were further directed to undergo imprisonment for 8 months. All the appellants have been convicted and sentenced by Sri Rakesh Pati Tiwari, learned Additional District and Sections Judge – VI, Bettiah, West Champaran in Trial No. 71 of 2010.
3. Short fact of the case is that on 02-07-2010 at 11.40 hrs., Sub-Inspector of Police Sri Priyavrat (P.W.2), officer incharge of Gopalpur Police Station recorded his self-written statement at the house of Yamuna Sah @ Jamuna Sah (appellant in Cr. Appeal DB No. 946/14) in village – Kadamwa, P.S. - Gopalpur (West Champaran). In the self-written statement, he recorded that on 02-07-2010, in morning at 9:50 AM, he received secret information that in village Kadamwa near bank of a river, Ainul Dhobi (appellant in Cr. Appeal DB No. 313/15), Bachan Sah (appellant in Cr.Appeal DB No. 341/15) and some other nearby residents, with a view to smuggle Ganja, had concealed the same in their houses. After making sanaha entry no. 31, the informant with following persons proceeded in a police jeep with home Patna guard driver Vijay Pandey (P.W.5) to verify the said information:-
(1) A.S.I. of Police Nathuni Paswan (not examined),
(2) Constable Ram Lal Ram (not examined),
(3) Constable Dev Kumar Sah (not examined),
(4) Constable Satrughan Bhagat (P.W.1),
(5) S.A.P. Constable Chandradeo Prasad (P.W.4),
(6) S.A.P. Constable Rajveer Singh (P.W.3), and
(7) S.A.P. Constable Swarn Singh (not examined)
On way, he informed local Dafadar Sk. Aalim (P.W.6), with instruction, to reach at the place of occurrence. The informant with Armed Force at 10:30 AM reached village – Kadamwa, which was situated near the bank of a river, where Dafadar Sk. Aalim (P.W.6) also reached. In view of information, in presence of local independent witnesses namely Birendra Sah (P.W.7) and Amerika Sah (P.W.8), both residents of village – Kadamwa, P.S.- Gopalpur, he searched premises of Bachan Sah (appellant in Cr. Appeal DB No. 341/2015), Ainul Dhobi (appellant in Cr. Appeal DB No. 313/2015), Yamuna Sah @ Jamuna Sah (appellant in Cr. Appeal DB No. 946/2014) and also premises of two or three other person after following the procedure of search. The informant further stated in his self written statement that from the hut of Bachan Sah (appellant in Cr. Appeal DB No. 341/15), he recovered about 39 kg. of Ganja wrapped in polythene, which were kept in six bundles of clothes. At that very time, male and female members were found absent. Thereafter, in presence of aforesaid witnesses, the seizure list was prepared at 10:45 AM. Subsequently, the premises of his neighbour Mishri Sah was also searched, but nothing could be found there. During search, a hut type premises of Ainul Dhobi (appellant in Cr. Appeal DB No. 313/15) was also examined and there also, 20 bundles of Ganja, kept in different bags, were found and total 130 Kg. of Ganja was shown to be recovered from the said place of Ainul Dhobi. Accordingly, in
