Back
2017 Supreme(Pat) 1361
IN THE HIGH COURT OF JUDICATURE AT PATNA
S. KUMAR, RAVI RANJAN, JJ.
Bhairo Singh S/o Sukhdeo Singh - Appellant
Versus
The State of Bihar - Respondent
Criminal Appeal (DB) Nos. 276 & 834 of 2015
Decided On : 06-11-2017
Advocate Appeared:
For the Appellant : Mr. Manish Kumar No. 13, Mr. Rohit Kumar, Mrs. Kanchan Jha, Mrs. Nitu Kumari No. 7
For the State : Mr. Ashwani Kumar Sinha
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 20, 22, 42, 52-A and 55 – Seizure of Ganja – Conviction and sentence – There is no P.S. Malkhana register showing safe custody of 4 Quintals of seized Ganja – Seized 4 Quintals of Ganja was never produced before Special Court or its inventory was prepared by any Magistrate – There is no destruction certificate of seized 400 Kg of Ganja which is mandatory requirement under NDPS Act – Nowhere in prosecution case it has been stated that where 4 Quintals of Ganja has been kept – None of procedure as prescribed by Section 52-A of NDPS Act for preparation of inventory, detail description of seized Ganja and sampling in presence of Magistrate has been followed in this case which vitiates entire trial – Order of conviction and sentence and fine of accused-appellants are not sustainable either in fact or in law and investigation is faulty and defective and mandatory provisions of NDPS Act has not been complied – Conviction, sentence and fine set aside. (Paras 16 to 19)
S. Kumar, J.
Criminal Appeal (D.B.) 276 of 2015 and Criminal Appeal (D.B.) 834 of 2015 are in the form of Jail Appeal arising out of judgment and order of conviction dated 12.05.2014 under Section 20(b)(ii)(C) of the NDPS Act and order of sentence dated 13.05.2014 to undergo rigorous imprisonment for 14 years with fine of Rs. 1,00,000/- each and in default of payment of fine they shall further undergo rigorous imprisonment for two years passed in Special Case No. 46 of 2011 arising out of Alamganj P.S. Case No. 314 of 2011 under Sections 20 and 22 of the NDPS Act, passed by the Additional Sessions Judge-XI, Patna.
2. Heard learned counsel for the parties.
3. Briefly stated, the facts of the case is that as per FIR Sidhnath Singh, police Sub-Inspector, was posted in Alamganj P.S. Patna and on 18.11.2011 at about 9:30 am, he received secret information that one white coloured Tavera Jeep is coming from Hajipur towards Patna which contains ganza loaded on it. On receiving said information, he took Alamganj Mobile No. 1 along with A.S.I. Vikash Chandra Yadav and other police force personnel and reached southern end of Ganga Over-Bridge at about 9:40 am. He saw the white coloured Tavera Jeep coming from the opposite side, stopped the said vehicle and found two persons sitting on the vehicle and took away the key of the vehicle, and thereafter searched the vehicle and found ganza packet in the said vehicle. In presence of two independent witnesses seized 40 packets of ganza each packet containing 10 Kg of ganza totalling 4 Quintals and prepared seizure list of the contraband articles in presence of two independent witnesses. A copy of the same was given to the two accused persons, who put their signature on the seizure list. The two accused persons, one who was driving the vehicle disclosed his name as Md. Aasim Alam and the person sitting by his side disclosed his name as Bhairo Singh and the registration number of the vehicle was BR-06L-1512, however, it appears that the number of the vehicle was BR-06L-1215 which was erased and mentioned as BR-06L-1512, and on demand they could not produce the ownership documents of the vehicle or the driving licence. Both persons were taken into custody giving rise to Alamganj P.S. Case No. 314 of 2011 dated 18.11.2011 for the offences punishable under Section 414 of the Indian Penal Code and Section 20/22 of the NDPS Act and after registration of FIR the investigation of the case was handed over to A.S.I. Vikash Chandra Yadav.
4. After completing the investigation the investigating officer, A.S.I. Vikash Chandra Yadav, submitted chargesheet on 16.02.2012 under Section 414 of the Indian Penal Code and Section 20/22 of the NDPS Act, against the accused-appellants.
5. The charges were framed against the accused-appellants under Section 20(b)(ii)(C) of the NDPS Act by the Additional Sessions Judge-II, Patna on 17.04.2012, and the accused-appellants pleaded not guilty and claimed to be tried. No charge under Section 414 of the IPC was framed against the accused-appellants.
6. PW-1 Md. Ladan is the seizure list witness, who was declared hostile by the prosecution. He denied that 4 Quintals of ganza was seized in his presence. He further stated that his house was within the campus of the police station and on the request made by the informant (Sidhnath Singh), he put his signature over the seizure list in the Police Station.
7. PW-2 Sonu Kumar is also seizure list witness who was also declared hostile. He stated that no ganza was seized in his presence. He also stated that his house was within the campus of the police station and on the request made by the informant (Sidhnath Singh), he put his signature over the seizure list in the Police Station.
8. PW-3 is Vikash Chandra Yadav, who is the investigating officer of the case. He has stated in his deposition that on 18.11.2011, he was posted as A.S.I. in Alamganj P.S., Patna Sahib and Sidhnath Singh (informant) police Sub-Inspector was also posted th
