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2019 Supreme(Pat) 1705
IN THE HIGH COURT OF JUDICATURE AT PATNA
ADITYA KUMAR TRIVEDI, J.
Meena Devi, Wife of Motilal Patel and Ors - Appellant
Versus
The State of Bihar - Respondent
Criminal Appeal (SJ) No.3220 of 2017
Decided On : 03-07-2019
For the Appellant :Mr. Bashishtha Narayan Mishra, Mr. S. N. Rai, Mr. B. K. Mishra, Advocates
For the Respondent: Mr. Bipin Kumar, A.P.P.
The main legal point established in the judgment is the necessity for strict compliance with the mandatory provisions of the N.D.P.S. Act, including the production of seized materials, the requirement of personal search under Section 50, and the disclosure of confidential information under Section 42(2).
Headnote:
N.D.P.S. Act - Conviction under Section 20(b)(ii)(c) and Section 22(c) - Summary of Acts and Sections: N.D.P.S. Act, Section 20(b)(ii)(c), Section 22(c), Section 23(c), Section 50, Section 42(2) - The court discussed the impact of non-production of material exhibit, the requirement of personal search under Section 50, and the violation of Section 42(2) of the N.D.P.S. Act. The judgment emphasized the mandatory provisions of law and the necessity for strict compliance with the legal requirements.
Fact of the Case:
The appellants were found guilty under the N.D.P.S. Act for possession of contraband goods. The prosecution's case was based on the recovery of the substance from the appellants' possession during a raid. However, the defense denied the allegations without presenting any evidence.
Finding of the Court:
The court found inconsistencies in the evidence presented by the prosecution, including the non-production of seized articles, violation of the requirement of personal search under Section 50, and non-compliance with Section 42(2) of the N.D.P.S. Act. The court concluded that the judgment of conviction and sentence recorded by the lower court were not justified and set aside the same, allowing the appeal and directing the release of the appellants.
Issues: The key issues revolved around the legality of the evidence presented by the prosecution, including the non-production of seized articles, violation of the requirement of personal search under Section 50, and non-compliance with Section 42(2) of the N.D.P.S. Act.
Ratio Decidendi: The court emphasized the mandatory provisions of law, including the necessity for strict compliance with the legal requirements under the N.D.P.S. Act, such as the production of seized materials, the requirement of personal search under Section 50, and the disclosure of confidential information under Section 42(2).
Final Decision: The judgment of conviction and sentence recorded by the lower court was set aside, and the appeal was allowed. The appellants were directed to be released forthwith if not wanted in any other case.
JUDGMENT :
1. Against the judgment of conviction and order of sentence dated 12.10.2017 whereby and whereunder both the appellants namely Meena Devi and Pramilla Devi have been found guilty for an offence punishable under Section 20(b)(ii)(c) of the N.D.P.S. Act and each one has been sentenced to undergo R.I. for ten years as well as to pay fine appertaining to Rs. One Lac, 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. One Lac, 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. One Lac and in default thereof, to undergo R.I. for one year, additionally, with a further direction to run the sentences concurrently, with a further direction with regard to set off against the period having undergone during course of trial by the learned 5th Additional Sessions Judge, West Champaran at Bettiah in Trial No.33 of 2014, instant memo of appeal has been filed while acquitting for an offence punishable under Section 414 Cr.P.C.
2. On getting confidential information with regard to transportation of Ganja (contra band goods) from Nepal, a raiding party was constituted by the informant, O/c of Gopalpur P.S. and then, at Shivaghat bridge, the informant along with other police officials ambushed. After sometime, one tractor came occupied by two ladies and a man excluding driver, which was intercepted and during course of search, with the help of Constable Chhaya Ram (PW-2), from the possession of Meena Devi, 13 yellow packets having been wrapped with her body has been found and seized while from the possession of Pramilla Devi, six packets containing yellow substance were seized duly wrapped with her body and for that, on query, they both made inculpatory extra-judicial confessional statement that the aforesaid substance happens to be Charas and on account of poverty, they both acceded to become carrier at the instance of one Rajendra Pal. Accordingly, seizure list was prepared. Both the accused persons including driver and one more person from whose possession, nothing was recovered, were arrested.
3. After institution of Gopalpur P. S. Case No.08 of 2014, investigation commenced during course of which, as is evident, the seized articles (samples) were sent to F.S.L. and got the F.S.L. Report, examined the witnesses, inspecting the place of occurrence and then, concluding the investigation, chargesheet has been submitted against the two appellants, facilitating the trial, meeting with the ultimate result, subject matter of instant appeal.
4. 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 in defence.
5. In order to substantiate its case, prosecution has examined altogether nine PWs, who are PW-1, Rafikur Rehman, PW-2, Constable Chhaya Ram, PW-3, Constable Bhikari Rai, PW-4, Mahendra Sah, PW-5, Daroga Yadav, PW-6, Kishun Pal, PW-7, Pankaj Rai, PW-8, Khedan Das and PW-9, Constable Upendra Yadav. Side by side, also exhibited the Exhibit-1, seizure list, Exhibit-2, written report, Exhibit-3, formal F.I.R., Exhibit-4, endorsement over self-statement, Exhibit-5, C.D., Exhibit-6, F.S.L. Report.
6. From the evidence available on the record, more particularly that of PW-1, informant during cross-examination at Para-15 had stated that the seized articles were kept at Thana Malkhana bearing serial no.2/ 2014. In likewise manner, I.O. (PW-7) at Para-21 had stated that the seized material exhibit is kept at Thana Malkhana. However, from the evidence available on the record, it is apparent that so alleged seized articles have not been produced in Court as material exhibit. In the case of Vijay Jain v. State of Madhya Pradesh as reported in (2013) 14 SCC 527, the Hon’ble Apex Court has occasion to see the impact of non production of material exhibit during course of trial and
