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2018 Supreme(Pat) 1195
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR, J.
Munib Sah Barnwal - Appellant
Versus
State of Bihar - Respondent
Criminal Appeal (SJ) No. 1134 of 2016
Decided On : 12-07-2018
For the Appellants :Bimlesh Kumar Pandey Advocate and Mr. Ajeet Kumar Bhardwaj Advocate.
For the Respondents:Ms. Abha Singh APP and Mr. Sri Zeyaul Hoda Advocate.
The central legal point established in the judgment is the strict and harsh requirements for proof under the N.D.P.S. Act, emphasizing the need for compliance with mandatory provisions and the stringent nature of the Act.
Headnote:
N.D.P.S. Act - Conviction under Sections 20(B), 22, 23, 27(A) and 29 - Summary of Acts and Sections: N.D.P.S. Act, 1985 - Sections 20(B), 22, 23, 27(A) and 29 - The court discussed the provisions of the N.D.P.S. Act, emphasizing the strict requirements for proof and the mandatory provisions of the Act. The violation of these provisions rendered the judgment and order of conviction highly suspect.
Fact of the Case:
The appellant was convicted under Sections 20(B), 22, 23, 27(A) and 29 of the N.D.P.S. Act, 1985 for possession of narcotic substances. The prosecution's case was based on the self-statement of a witness and the seizure of 8 kgs of Charas from the appellant.
Finding of the Court:
The court found that the prosecution failed to provide definite proof of weighing and sealing the seized narcotic, and the witnesses' testimonies were inconsistent. The court emphasized the strict requirements for proof under the N.D.P.S. Act and set aside the judgment and order of conviction.
Issues: The issues revolved around the reliability of witness testimonies, the handling of the seized narcotic, and compliance with the provisions of the N.D.P.S. Act.
Ratio Decidendi: The court emphasized the strict and harsh provisions of the N.D.P.S. Act, highlighting the need for adherence to the mandatory provisions and the requirement for stringent proof in cases involving narcotic substances.
Final Decision: The appeal was allowed, and the appellant was directed to be released from custody.
ASHUTOSH KUMAR, J.
1. Heard learned counsel for the appellant and the State.
2. The appellant/Munib Sah Barnwal has been convicted under Sections 20 (B), 22, 23, 27(A) and 29 of the N.D.P.S. Act, 1985 by judgment dated 29.09.2016, passed by the learned IIIrd Additional District and Sessions, West Champaran, Bettiah and by order dated 01.10.2016, he has been sentenced to undergo RI for 10 years for each of the offences and to pay a fine of Rs. 1,00,000/- (one lakh) and in default of payment of fine, to further suffer simple imprisonment for one year each for all the offences. The sentences have however been ordered to run concurrently.
3. The basis of the prosecution case is the self-statement of Mukesh Kumar (P.W. 4), who has alleged that while checking the vehicles near the border of Nepal, one person who was coming on a motorcycle from the side of Nepal tried to run away. The aforesaid witness (P.W. 5), with the help of other police personnels, nabbed him and searched his person. On search, narcotic substances, kept in 17 packets and weighing 8 kgs, were found. The substance which was recovered appeared to be Charas. On further probe, the aforesaid person disclosed his name as that of the appellant and disclosed that the aforesaid consignment of Charas was brought from Nepal for the purposes of handing it over to one Munna Mian for its sale. A seizure list was prepared in front of two witnesses, who had arrived at the place of occurrence during the time of search and seizure and the appellant was thereafter arrested.
4. On the basis of the aforesaid self-statement, a case vide Kangali P.S. Case No. 38 of 2012, dated 30.07.2012 was instituted for investigation for offences under Sections 20(B), 22, 23, 27(A) and 29 of the N.D.P.S. Act, 1985. The police after investigation submitted charge-sheet whereupon cognizance was taken and the case was committed to the concerned Court for trial.
5. The Trial Court, after examining six witnesses on behalf of the prosecution, convicted and sentenced the appellant as aforesaid.
6. Mr. Bimlesh Pandey, learned Advocate appearing for the appellant has argued that from the evidence of the witnesses, no case under the aforesaid Sections of the N.D.P.S. Act has been made out. The reasons for saying so is that the so called seized narcotic was neither weighed nor sealed. For how long was it kept in the Malkhana is also not known. When the aforesaid consignment was brought to the Court during trial, there was no seal over it. There is no reference of any person having accepted the same and having kept in the Malkhana. He, therefore, submits that there is a complete violation of the provisions of Section 52 A of the Narcotic Drugs and Psychotropic Substances Act. He has further submitted that the seizure list witnesses, namely, P.W.s 1 and 2 have not supported the prosecution version, but they have not been declared hostile. In that view of the matter, their deposition has to be believed insofar as the recovery is concerned. The aforesaid two witnesses have stated that nothing was recovered from their possession and that they had signed the seizure list on the asking of the Police Officer. The other witnesses, it has been argued, have only tried to support the prosecution version, but their deposition lacks essential material particulars for the Court to convict the appellant under the aforesaid 7. Sections of the N.D.P.S. Act.
7. In order to appreciate the contention of the appellant, it would be relevant to go through the deposition of the informant- P.W. 5. He has reiterated the averments made in his self-statement and has stated that the occurrence is of the month of August in the year 2012. While he along-with other police personnel, on the orders of the superior police officer, was checking the vehicles near the Indo-Nepal Border, one person was seen coming from the side of Nepal on Motorcycle. He disclosed his name as that of the appellant. From beneath the seat of the vehicle 8 Kgs of Ch
