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2018 Supreme(Pat) 1682
IN THE HIGH COURT OF JUDICATURE AT PATNA
ADITYA KUMAR TRIVEDI, J.
Laxmi Thakur, Son of Late Singhasan Thakur - Appellant
Versus
State of Bihar - Respondent
Criminal Appeal (SJ) No.169 of 2009
Decided On : 05-12-2018
Advocate Appeared:
For the Appellant :Mr. Raghav Prasad-Advocate
For the Respondent: Mr. Sujit Kumar Singh-A.P.P.
Procedural irregularities and failure to follow search and seizure procedures under Section 50 of the N.D.P.S. Act led to the setting aside of the judgment and allowing the appeal.
Headnote:
N.D.P.S. Act - Offence under Section 20(b)(II) - Excise Act, Sections 2(13), 47, 77, 78, 82 - N.D.P.S. Act, Section 50 - [SUMMARY OF ACT SECTIONS REFERENCED AND DISCUSSED BY THE COURT]
Fact of the Case:
Appellant found guilty under Section 20(b)(II) of the N.D.P.S. Act for possession of one kilogram Charas. Prosecution launched by excise officials based on suspicious circumstances and personal search.
Finding of the Court:
The prosecution case was hopelessly conducted, and the excise officials failed to follow proper procedures under the Excise Act. Serious procedural lapses and lack of evidence led to the finding that the judgment impugned is set aside and the appeal is allowed.
Issues: Procedural irregularities, applicability of N.D.P.S. Act and Excise Act, failure to follow search and seizure procedures under Section 50 of the N.D.P.S. Act.
Ratio Decidendi: The court found that the excise officials failed to follow proper procedures under the Excise Act, leading to serious procedural lapses and lack of evidence, which resulted in setting aside the judgment impugned and allowing the appeal.
Final Decision: Judgment impugned is set aside, and the appeal is allowed. Appellant is discharged from liability.
JUDGMENT :
1. Appellant Laxmi Thakur has been found guilty for an offence punishable under Section 20(b)(II) 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.25,000/-and in default thereof, to undergo S.I. for six months, additionally, by the Additional Sessions Judge, Fast Track Court-II, West Champaran at Bettiah vide judgment of conviction dated 22.11.2008 and order of sentence dated 25.11.2008, relating to Trial No.08 of 1994, arising out of Government Case No.02 of 1994.
2. Prosecution has been launched against the appellant at the behest of excise officials on an allegation that on 04.04.1994, while they were proceeding over Narayan Ghat Road, they found the appellant in suspicious circumstance, whereupon apprehended, searched out, in presence of witnesses Kameshwar Prasad (PW-2), Amar Nath Mishra (not examined) and Harendra Sah (PW-3) and during course thereof, one kilogram Charas has been found from his possession. Consequent thereupon, the trial proceeded as is evident from the order sheet as a Complaint Case being governed by Excise Act and further, altogether two Pws were examined and then, on 17.04.1995, charge was framed under Section 20(b)(II) of the N.D.P.S. Act. It is evident that PW-1 and PW-2 never turned up after charge while PW-3, Harendra Sah has been examined on 13.06.2008 and after closure of the prosecution case, statement of the appellant/ accused was recorded under Section 313 of the Cr.P.C. and then, passing through Zigzag of the procedural law i.e. defence argument, the judgment impugned has been passed, subject matter of instant appeal.
3. Defence case, as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. However, nothing has been adduced on his behalf.
4. After perusal of the record, it is evident that it happens to be hopelessly conducted case. The prosecution was not at all aware with the fact that whether this case should have been proceeded in accordance with N.D.P.S. Act or under the Excise Act. In terms of definition of intoxicated substance so prescribed under Section 2(13) of the Excise Act does contain presence of charas and that being so, is punishable under Section 47 of the Excise Act. That being so, when the initiation of proceeding has been taken up at the end of the excise official, then in that circumstance, the excise officials were quite competent to investigate the case in accordance with Section 77 of the Excise Act and in likewise manner, was empowered to exercise the power of a police official, during course thereof, as provided under Section 78 of the Act. Had there been proper exercise at the end of the excise officials in accordance with Section 77 as well as 78 of the Excise Act, the matter would have been properly investigated, which none of the PWs has spoken. Apart from this, as per Section 82 of the Excise Act, the matter was required to be reported to the superior officials, which as per evidence of PW-1 as well as PW-3 completely kept silence.
5. So, had there been proper exercise of power by the excise officials in accordance with Excise Act, then in that circumstance, the prosecution would have under Section 47 of the Excise Act and paraphernalia so prescribed under Excise Act as indicated hereinabove, would have been the proper procedure to be taken up at their end.
6. From the prosecution report, it is evident that same has been filed attracting the offences punishable under Section 20(b)(II) of the N.D.P.S. Act. Then in that circumstance, the procedure, the mandate, the requirement so prescribed thereunder were to be followed. There happens to be specific disclosure that from the physical possession of the appellant, one kilogram Charas was found and seized. That means to say, the recovery was on the basis of personal search. When the recovery was on the basis of personal search, then Section 50 of the N.D.P.S. Act was applicable
