Paspat Sahani vs State Of Bihar - 2021 Supreme(Pat) 706

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Pat) 706

IN THE HIGH COURT OF JUDICATURE AT PATNA
Birendra Kumar, J.
Paspat Sahani & Ors. - Appellant
Versus
The State Of Bihar - Respondent
Criminal Appeal (Sj) No. 106 of 2016 With Criminal Appeal (Sj) No. 32 of 2016
Decided On : 15-09-2021

Advocates Appeared:
Mr. Nitya Nand Tiwary, Advocate.,Mr. Dhananjay Kumar No.2, Advocate., for the Appellant; Mr. S.A.Ahmad, APP., Mr. Binod Bihari Singh, APP, for the Respondent.

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 20(b)(ii)(c) and 23(c) read with Sections 43 and 50 – Constitution of India – Article 21 – Seizure of Ganja – Conviction and sentence – Production-cum-seizure list does not bear signature of appellants or any witness – Proforma for seizure memo does not contain number of bundles seized – Only total weight of 96 Kg. is mentioned besides cost of Ganja – Such infirmity in prosecution evidence goes to root of prosecution case – Total non-compliance of mandates of N.D.P.S. Act would be fatal for prosecution case rather delayed compliance and substantial compliance would not affect trustworthiness coupled with other facts and circumstances of this case – In case on hand, search was made on a public place and seizure and arrest was also affected at public place – Requirement of Section 43 of N.D.P.S. Act was to be followed – Since case of prosecution is that accused persons had thrown bundles on their head and they were apprehended soon along with recovery of thrown bundles, it is a case of recovery from possession of a person – It cannot be argued that mandate of N.D.P.S. Act contained in Sections 43 and 50 was not required to be followed – There is total lack of evidence that appellants were informed of their right to be searched in presence of Magistrate nor informant or anyone attempted to take services of Magistrate either at spot or at police station where they took appellants along with seized narcotics before opening its seal – Prosecution must prove that accused was made aware of his right but he did not choose to be searched before a Gazetted Officer or a Magistrate – If no evidence to this effect is brought on record, Court must assume that accused was not informed of his right and must find that possession of illicit articles was not established – There is no evidence that appellants were informed of their right to be searched before a Gazetted Officer nor there is any evidence that search was made in presence of any Magistrate – It is doubtful that recovery was made from possession of appellants – Nothing was recovered from physical possession of appellants – Fair trial is a constitutional guarantee to accused under Article 21 of Constitution of India – Fair trial includes fair investigation – Onus lies on prosecution to demonstrate that investigation was fair enough to cause no prejudice to accused – In case on hand, total non-compliance of mandate of law, especially in matter of search and seizure and taking out samples for forensic examination leaves a lot of room to doubt fairness of investigation – It cannot be said that prosecution has successfully proved charges against appellants – Impugned judgment and sentence set aside and appeals allowed. (Paras 7 to 11)

JUDGMENT

1. The appellants above named have challenged their conviction for offences under Sections 20(b) (ii)(C) and 23(c) of the N.D.P.S. Act by judgment dated 19.11.2015 passed in N.D.P.S. Case No. 63 of 2012 arising out of Palanwa P.S. Case No. 73 of 2012. The learned trial Judge (Additional Sessions Judge-I, East Champaran at Motihari) by the impugned order of sentence dated 21.11.2015 awarded 10 years rigorous imprisonment and a fine of Rs. 1 lac under both the aforesaid heads of the offences. However, the sentences were ordered to run concurrently.

2. The prosecution case as disclosed in the written report of PW-1 Ram Vinay Singh is that he along with his eight helpers put an ambush near Indo Nepal Border at Piller No. 400, Bridge No. 88. Some people from the Nepal side carrying bundles on their head were entering into the territory of India at about 11 PM on 16.06.2012. When they were stopped for queries, the people threw their bundles and started fleeing. Three of them namely the two appellants and one Jado Lal Yadav were apprehended and in presence of Tribhuwan Prasad Yadav (PW-5) and Navin Kumar (PW-6), the thrown articles were searched and it was noticed that ganja like substance was there. Total weight of the narcotic was 96 Kg.

3. After investigation, the police submitted chargesheet against all the three. Co-accused Jado Lal Yadav claimed to be a juvenile as such his matter was separated and sent to the Juvenile Justice Board by order dated 06.03.2013.

4. Mr. Dhananjay Kumar No. 2, learned counsel for the appellant Paspat Sahani and Mr. Nityanand Tiwary, learned counsel for the appellant Ranjeet Sahani contends that the so called seizure list witnesses have not supported the factum of search and seizure in their presence and they have not been declared hostile by the prosecution. Hence the defence can rely on their testimony which creates serious doubt on the prosecution case. Moreover, there is total non-compliance of the mandates of Sections 43 and 50 of the N.D.P.S. Act which goes to the root of the prosecution case. There is complete lack of evidence that services of the Magistrate was taken at the time of search or seizure or at the time of taking out samples for test. The prosecution case is vague as to how many bundles were seized and whether samples were taken from all the bundles or not. The prosecution witnesses are specific that due to darkness they could not say definitely as to who had thrown the bundle on his head. Further the prosecution evidence is specific that nothing was recovered from physical possession of the appellants.

5. To contra, Mr. S. A. Ahmad, learned APP in Cr. Appeal (SJ) No. 106 of 2016 and Mr. Binod Bihari Singh, learned APP in Cr. Appeal (SJ) No. 32 of 2016 contends that since recovery was not made from physical possession or from any vessel or the house etc. of the appellants, hence compliance of Sections 42, 43 or 50 was not required in this case. The informant and other police associates have consistently supported the prosecution case. The learned trial Judge has considered the aforesaid aspects while recording the judgment of conviction. Hence the same requires no interference.

6. PW-5 Tribhuwan Prasad Yadav is specific that he had signed on the blank papers on the instruction of the informant of this case who was sub-Inspector posted at BPO Camp, Siswa. He had signed on seizure paper at the camp and no ganja like substance was seized in his presence. Identical is statement of PW-6 Navin Kumar and other so called seizure list witnesses. None of the aforesaid prosecution witnesses have been declared hostile.

In Raja Ram v. The State of Rajasthan, reported in (2005) 5 SCC 272, the Hon'ble Supreme Court said that if a prosecution witness is not declared hostile by the prosecution, the defence can rely upon the evidence of such witness and it would be binding on the prosecution. The same view was reiterated in Mukhtiar Ahmed Ansari vs. The State (NCT of Delhi, reported in (2005) 5 SC

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