Point of Law : NDPS Act – Conviction set aside - Complete lack of evidence as to whether the seized substances were sealed at all muchless in presence of responsible person.

JUDGMENT :

The sole appellant is one of the accused of Udwantnagar (Gajrajganj) P.S. Case No.195 of 2017. After investigation the police sent up only the appellant for trial vide Exhibit-8 and investigation against other co-accused was kept pending. Accordingly, the appellant faced trial before the learned 4th Additional Sessions Judge-cum-Special Judge Excise Act, Bhojpur at Ara, in N.D.P.S. Case No.25 of 2017. By judgment dated 25.11.2019 the learned trial Judge convicted the appellant for offence under Sections 20(b)(ii)(c) of the N.D.P.S. Act and by order of sentence dated 02.12.2019 ten years rigorous imprisonment along with fine of rupees ten thousand was awarded. In default of payment of fine six months further imprisonment was ordered. The trial Court judgment and order are under challenge in this appeal.

2. The prosecution case as disclosed in the written report of PW 6 Satyendra Kumar is that on 07.07.2017 at 6:15 AM, the informant was telephonically informed by Sub-Divisional Police Officer, Ara (not examined during trial) that in village Masarh, the house of the appellant is required to be raided as it had been learnt that appellant is involved in business of Ganja. The Sub-Divisional Police Officer informed that he was also to accompany the team of the police officials. Accordingly, a team to conduct raid was constituted of PW 6, the Sub-Inspector of Police, Gajrajganj out post, along with other Officer-in-Charges of different police stations named in the FIR. Then the Block Development Officer, Udwantnagar (PW 1) was also telephonically contacted to remain there at the time of raid. The police team raided the house of the appellant and from a room situated at south-western corner of the house 30 Kgs of Ganja was recovered from a box inside the bed. Likewise, 25 Kgs of Ganja was recovered from a Bolero vehicle parked near the house bearing registration No.BR3P 2190 and electronic weighing machine was also recovered. The appellant was trying to flee away by jumping over on the roof of the neighbour. However, the appellant was apprehended on the spot. The appellant disclosed that his uncle Brij Kishore Singh is also involved in the business of Ganja. Appellant had purchased the Ganja from co-villager Rakesh Singh, which was to be supplied to Dinesh Singh of village Balgojar and to Jitendra Singh as well as to one Pakauri. The narcotic, a Samsung Mobile, the Weighing Machine as well as the Bolero vehicle were seized by the police and a seizure list was prepared and a copy of the seizure-list is Exhibit-5.

3. During trial prosecution examined altogether seven witnesses. PW 1 Md. Sikandar is the local BDO, who was present at the time of search and seizure. The witness besides supporting the factum of search and seizure has identified his signature on the seizure-list. PW 2 Jyotish Paswan, a Hawaldar of Police, PW 3 Suresh Prasad, a constable, PW 4 Sanjay Singh, a local Chaukidar, PW 5 Dina Nath Singh, a local Chaukidar and PW 6 Satyendra Kumar, the informant of the case, all claims to be eyewitnesses of the search and seizure. PW 7 Shankar Pandit is Investigating Officer of the case.

4. Mr. Vikram Deo Singh, learned counsel for the appellant, contends that there is complete lack of evidence that the informant or the Sub-Divisional Police Officer had complied the requirement of Section 42 of the N.D.P.S. Act which requires that the information gathered by the informant regarding possibility of any narcotic or psychotropic substance at any place to be reduced into writing and immediate information of the same to the superior officer.

Learned counsel contends that there is complete lack of evidence that the seized narcotics were sealed at the place of recovery and the same was kept in a safe custody in the police Malkhana etc. Further there is complete lack of evidence that in whose presence or at what place or by what person the samples of the seized narcotics were taken out. Narcotics were seized from two places and only one