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2018 Supreme(Pat) 1256
IN THE HIGH COURT OF JUDICATURE AT PATNA
Rajendra Menon, Rajeev Ranjan Prasad, JJ.
Md. Samsul and Ors. – Appellants
Vs.
The Union of India – Respondent
Criminal Appeal (DB) Nos. 310 and 292 of 2016
Decided On : 01-05-2018
For the Appellant : Prakash Tiwari
For the Respondent: Manoj Kumar Singh, CGC
Strict compliance with statutory provisions under the N.D.P.S Act, particularly in relation to search and seizure procedures, is mandatory and failure to adhere to these requirements can lead to the acquittal of the accused.
Headnote:
N.D.P.S. - Criminal Appeal - Sections 20(b)(ii)(c), 23(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 - The judgment discusses the violations of statutory provisions under the N.D.P.S Act, including search and seizure procedures, preparation of inventory, and destruction of contraband articles. The court found that there was a lack of compliance with mandatory requirements, leading to the acquittal of the accused persons.
Fact of the Case:
The accused persons were found guilty of smuggling contraband Ganja in a Tanker lorry. The prosecution presented evidence of the seizure and chemical analysis of the Ganja, as well as confessional statements from the accused.
Finding of the Court:
The court found that there were violations of statutory provisions under the N.D.P.S Act, including search and seizure procedures, preparation of inventory, and destruction of contraband articles. The lack of compliance with mandatory requirements led to the acquittal of the accused persons.
Issues: The issues revolved around the compliance with statutory provisions under the N.D.P.S Act, including search and seizure procedures, preparation of inventory, and destruction of contraband articles.
Ratio Decidendi: The court emphasized the mandatory nature of the statutory provisions under the N.D.P.S Act and the need for strict compliance. It cited previous judgments to support the requirement for adherence to procedures such as Section 50 of the N.D.P.S Act.
Final Decision: The conviction of the accused persons was set aside, and they were directed to be released forthwith.
Rajeev Ranjan Prasad, J.
1. These two criminal appeals have arisen out of the judgment dated 27th January, 2016 passed by the learned 1st Additional Sessions Judge, East Champaran, Motihari, (hereinafter referred to as the learned "Trial Court") in N.D.P.S. Case No. 86 of 2009 punishable under Sections 20(b) (ii) (c), 23(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (in short "N.D.P.S. Act").
2. The learned Trial Court having recorded a finding of guilt against the two accused persons namely, Md. Firoz and Md. Samsul for the offences punishable under the aforesaid provisions of the N.D.P.S Act convicted them and they have been sentenced to undergo rigorous imprisonment for a term of 15 years with a fine of Rs. 1,50,000/- each for the offences punishable under Section 20 (b) (ii) (c) of the N.D.P.S Act. Default in payment of fine will result in further rigorous imprisonment for one year. They have also been sentenced to undergo rigorous imprisonment for a term of 10 years with a fine of Rs. 1,50,000/- for the offence punishable under Section 23 (c) of the N.D.P.S Act and for default in payment of fine they have to serve rigorous imprisonment for one year. The Trial Court has ordered that both the sentences shall run concurrently.
3. The prosecution case stated in brief are as under:-
That acting on an information that a Tanker lorry of West Bengal registration number is expected to come into India through the Border post of Raxaul from Birganj, Nepal, between 07.09.2009 and 09.09.2009 with contraband Ganja concealed in its chambers, one Tanker lorry bearing Registration No. WB39-7736 was signaled by the customs officers of Land Customs Station, Raxaul, to stop on 09.09.2009 at 6.15 hours just after crossing the Border check post at Raxaul. It is alleged that on stopping of the vehicle the driver who introduced himself as Md. Firoz was asked to get his vehicle searched. Although the driver of the Tanker lorry is said to have said that the lorry is empty but on suspicion the vehicle was searched. The Khalasi was identified as Md. Samsul.
4. According to the informant, before initiating the search the two independent witnesses were also requested to be present and to witness the search operation for which they agreed. Upon search it was found that a large number of rectangular packets are kept in four chambers of the said vehicle. It is alleged that when few packets were taken out and opened in presence of the two independent witnesses, the packets so opened appeared to contain Ganja with characteristic pungent smell. Thereafter, the Tanker lorry was thoroughly searched in presence of Superintendent (Preventive) and other witnesses, as listed above and all the packets kept in the four chambers were unloaded before the driver and Khalasi and the two independent witnesses. As per the allegations, during the search of the cabin of the said Tanker some documents were also recovered namely certificate of Registration of the said Tanker bearing Registration No. WB-39-7736 (in original), certificate of Insurance, National/Tourist permit for public carrier. A total of 475 numbers of rectangular packets of different sizes and weight of contraband Ganja (in moist condition, wrapped with paper, plastic sheets and tied with sutli) were recovered from the said Tanker lorry. The same were quantified and weighted before the said driver, Khalasi and the two independent witnesses. The gross weight of the Ganja was found to be 5181 Kgs and the net weight as 4468 Kgs. The value of the said Ganja was ascertained at the rate of 200 per kg as Rs. 89,36,000/-. The said lorry was also valued at Rs. 7,50,000/-. It is further stated that in presence of the Superintendent (Preventive) and other witnesses the above recovered Ganja and the vehicle totally valued at Rs. 96,86,000/- were seized on 09.09.2009 at 16 hours under the provisions of Section 43 of the N.D.P.S Act, 1985, for the violation of Section 8 of the N.D.P.S Act on reasonab
