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2018 Supreme(Pat) 365
IN THE HIGH COURT OF JUDICATURE AT PATNA
ADITYA KUMAR TRIVEDI, J.
Noor Mahamad @ Badari @ Noor Mohammad @ Noor Mahmad Miya, S/o Late Hanif Mohammad – Appellant
Versus
The State of Bihar - Respondent
Criminal Appeal (SJ) No.412 of 2015
Decided on : 25-04-2018
Advocate Appeared:
For the Appellant :Mr. Akhileshwar Kumar Shrivastava-Advocate
For the Respondent: Smt. Abha Singh-A.P.P.
The necessity for the prosecution to establish by cogent evidence the seizure of contraband goods from the possession of the accused and the importance of producing seized materials as material objects in a prosecution under the N.D.P.S. Act.
Headnote:
N.D.P.S. Act - Conviction under Section 20(b)(ii) C, Section 22(C), and Section 23(C) - Summary of Acts and Sections: N.D.P.S. Act - Section 20(b)(ii) C, Section 22(C), Section 23(C) - The court discussed the mandatory provisions under Section 42(2) and Section 57 of the N.D.P.S. Act, the impact of non-production of material exhibit during the trial, and the necessity for the prosecution to establish by cogent evidence the seizure of contraband goods from the possession of the accused. The court also referred to relevant case laws to emphasize the importance of producing seized materials as material objects and the consequences of non-production of contraband goods in a prosecution under the N.D.P.S. Act.
Fact of the Case:
The appellant was found guilty of possessing Ganja and sentenced under various sections of the N.D.P.S. Act. The prosecution's case was based on the apprehension of the accused along with a bundle of Ganja during patrolling by S.S.B. personnel.
Finding of the Court:
The court found inconsistencies in the evidence presented by the prosecution, including non-examination of the Investigating Officer (I.O.) and lack of adherence to mandatory provisions of the N.D.P.S. Act. The court also referred to relevant case laws to emphasize the importance of producing seized materials as material objects and the consequences of non-production of contraband goods in a prosecution under the N.D.P.S. Act.
Issues: Inconsistencies in prosecution's evidence, non-examination of the I.O., lack of adherence to mandatory provisions of the N.D.P.S. Act, and the impact of non-production of material exhibit during the trial.
Ratio Decidendi: The necessity for the prosecution to establish by cogent evidence the seizure of contraband goods from the possession of the accused and the importance of producing seized materials as material objects in a prosecution under the N.D.P.S. Act.
Final Decision: The judgment impugned did not survive, and the appeal was allowed, resulting in the appellant's discharge from liability.
Appellant Noor Mahamad @ Badari @ Noor Mohammad @ Noor Mahmad Miya has been found guilty for an offence punishable under Section 20(b)(ii) C of the N.D.P.S. Act and sentenced to undergo R.I. for ten years as well as to pay fine appertaining to Rs.1,00,000/- (one lac) and in default thereof, to undergo S.I. for two years, under Section 22(C) of the N.D.P.S. Act and sentenced to undergo R.I. for ten years as well as to pay fine appertaining to Rs.1,00,000/- and in default thereof, to undergo S.I. for two years, under Section 23(C) of the N.D.P.S. Act and sentenced to undergo R.I. for ten years as well as to pay fine appertaining to Rs.1,00,000/- and in default thereof, to undergo S.I. for two years, additionally, with a further direction to run the sentences concurrently vide judgment of conviction dated 24.03.2015 and order of sentence dated 27.03.2015 passed by the Additional Sessions Judge-3rd, West Champaran at Bettiah in Trial No.63 of 2010 arising out of Balthar P. S. Case No.13 of 2010.
2. Amit Singh (PW-2), Assistant Commandant of S.S.B.-27th Battalion filed written report on 01.06.2010 disclosing therein that while two Constables of 27th Battalion namely Charlin Chungkreg (PW-1) and Alok Kumar Singh (PW-5) were on patrolling, they had seen two persons over motorcycle, who seeing them, got down from the motorcycle and ran away, one of them having a bundle over his head. Seeing their activity suspicious, they were chased and during course thereof, one managed to escape while another the appellant was apprehended along with bundle of Ganja weighing 38 k.g. Accordingly, Ganja as well as motorcycle has been produced and for that, production-cum-seizure list was prepared over which, Charlin Chungkreg (PW-1) and Amit Singh (PW-2) stood as a witness.
3. After registration of Balthar P. S. Case No.13 of 2010, investigation commenced and concluded by way of submission of chargesheet, whereupon trial commenced and concluded in a manner, subject matter of instant appeal.
4. Defence case, as is evident from mode of crossexamination as well as statement recorded under Section 313 Cr.P.C. is that of complete denial. However, neither oral nor documentary evidence has been adduced.
5. In order to substantiate its case, prosecution had examined altogether nine PWs, who are PW-1 Charlin Chungkreg, PW-2 Amit Singh, PW-3 Bhole Ram, PW-4 Niranjan Bhuiyar, PW-5 Alok Kumar Singh, PW-6 Nagendra Rai, PW-7 Aslam Gaddi, PW-8 Saheb Gaddi and PW-9 Vijay Ram. Side by side, had also exhibited as Exhibit-1, signature of PW-1 over seizure list, Exhibit-2, signature of PW-2 over seizure list, Exhibit-3 written report in the pen of PW-2, Exhibit-2/1 happens to be signature of Alok Kumar Singh (PW-5), F.S.L. Report exhibited as Exhibit-4. As is evident, neither oral nor documentary evidence has been adduced on behalf of defence.
6. From the evidence, it is apparent that I.O. has not been examined. Furthermore, it is also evident that PW-6, PW-7, PW- 8 and PW-9 have not supported the case of prosecution and on account thereof, they were declared hostile. It is further evident that PW-3 and PW-4 though happen to be Sepoy of 27th Battalion of S.S.B., but they have not claimed themselves to be the member of patrolling party and on account thereof, they have not claimed to be an eye witness to occurrence. Now, remains the evidence of PW-1, PW-2 and PW-5. From the evidence of PW-1 and PW-5, it is evident that they both were on patrolling and during course thereof, they have perceived two persons coming over motorcycle, who seeing them, got down from the motorcycle and ran away along with bundle having over their head, out of whom, one was apprehended, who disclosed his identity as appellant while remaining one escaped there from. It is also evident that they have identified the accused in dock. So, their evidences on that very score is found intact as during course of crossexamination, defence could not be able to dismantle that part of evidence.
7. PW-2, th
