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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, RAJEEV RANJAN PRASAD, JJ.
Lakshaman Mahto S/o Late Bhanu Mahto – Appellant
Versus
The State Of Bihar - Respondent
Criminal Appeal (DB) No.338 of 2016
Decided on : 11-02-2022
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 20(b)(ii)(C) and 23(c) read with Sections 50 and 52-A – Clauses 1.4, 1.5, 1.6 and 1.9 of Standing Instruction No. 1 of 1988 dated 15.03.1998 – Seizure of Charas – Conviction and sentence – Appellant was not apprised of his right to be searched by a Gazetted Officer or a Magistrate – Contraband Charas was made from person of appellant and compliance with requirements under Section 50 of N.D.P.S. Act was mandatory – On this score alone, appellant would succeed – In absence of examination of seizure list witnesses and in absence of inclusion of their name in list of witnesses in charge-sheet, case of prosecution that seizure of contraband Charas was made in presence of independent witnesses becomes doubtful – Representative samples were not drawn from seized substance and sent to expert in designated laboratory for chemical analysis and report in accordance with law – Seized substance and samples were not handled properly in prescribed manner – Entire formalities of search and seizure except preparation of seizure list was done in Company Headquarter and not at place of occurrence – There is nothing to suggest that seizing officer sealed seized article at place of seizure or any time thereafter in terms of Clause 1.4 of Standing Instruction No. 1 of 1988 – There is also no evidence to suggest that any sample from seized packets was drawn on spot of recovery in presence of appellant in terms of Clause 1.5 of Standing Instruction – Non-sealing of seized packets and not collecting samples at initial stage of seizure were defects which could not have been cured later on – Seized substance was not kept in Malkhana and was not under proper custody as required in law – There is no evidence that packets of Charas found from possession of appellant were assigned a serial number – There has been non-compliance of guidelines issued by Standing Instruction No. 1 of 1988 – Court would draw adverse inference against prosecution – Seized contraband was never produced before court during trial – In absence of any evidence relating to disposal of seized property and production of seized property in court, it cannot be held that any seizure of contraband was made from possession of appellant – Circumstances which were not put to appellant during trial could not have been used against him for conviction and sentence – Appellant acquitted of charges levelled against him. (Paras 25, 26. 29, 30, 31, 32, 34, 35, 40, 41, 46, 52 to 57)
Code of Criminal Procedure, 1973 – Section 313 – Examination of accused – Question under Section 313 of Code of Criminal Procedure should not be treated as an empty formality as it is an important facet of trial – Object of Section 313 of Code of Criminal Procedure is to enable accused to explain circumstances against him in evidence so that he may submit his explanation to those circumstances personally as also his stand with regard to circumstances in evidence which have been collected against him and has come on record during trial – If questions on incriminating circumstances have been ignored by trial court then it is an illegality which amounts to abuse of process of court. (Para 50)
(2013) 14 SCC 527; (2004) 10 SCC 562; (1999) 6 SCC 172; (2011) 1 SCC 609; AIR 2002 SCC 1450; (2008) 16 SCC 417; 2012 (9) SCC 161; (2004) 10 SCC 562 – Relied.
JUDGMENT :
ASHWANI KUMAR SINGH, J.
Heard Mr. Shri Prakash Tiwari, learned counsel for the appellant and Mr. Ajay Mishra, learned Additional Public Prosecutor for the State through video conferencing.
2. This appeal is directed against the judgment of conviction and order of sentence dated 27.02.2016 and 29.02.2016 respectively passed by the learned 1st Additional Sessions Judge, East Champaran, Motihari in N.D.P.S. Case No. 48 of 2012 arising out of Raxaul P.S. Case No. 92 of 2012 whereby and whereunder the appellant has been convicted under Section 20(b)(ii)(C) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short ‘N.D.P.S. Act’) and sentenced to undergo rigorous imprisonment for a term of 11 years and to pay a fine of Rs.1,10,000/-and on default of payment of fine to further undergo rigorous imprisonment for one year. He has further been held guilty for the offence under Section 23(c) of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for a term of 10 years and to pay a fine of Rs. 1,00,000/-and in default of payment of fine to further undergo rigorous imprisonment for one year. Both the sentences have been ordered to run concurrently.
3. The prosecution case in short is that on 24.04.2012, at about 01:00 P.M., when the informant Lans Nayak, GD, 13th, B.N, SSB, “D” Coy David Sonowal was on patrolling duty along with other SSB personnel near border, he received a secret information regarding movement of certain contraband material from Nepal which information was passed on by him to his Company Commander, Inspector Shailesh Kumar and after seeking permission, the team headed by the informant started surveillance in the border area. At about 04:30 P.M., one person was seen coming from Birganj to Ahirwa Tola. He was directed to stop but having seen SSB officials, he started fleeing away. He was caught by the members of the team. On the queries made by the officials, he disclosed his name and identity as Lakshaman Mahto of Birganj Nepal. Thereafter in presence of two independent witnesses, namely, Nandu Yadav and Ram Balak Paswan, a search was made of the person detained and from his possession, 5 yellow coloured packets tied on his right thigh were recovered. On inquiry, he disclosed that the recovered packets contained charas. He disclosed that he is the owner of the contraband charas and he sells it after going to Raxaul. The recovered contraband was tested by drug detection kit and was found to be charas.
4. The informant has alleged that a seizure list was prepared at the place of occurrence and the person from whom the contraband charas was recovered was apprehended. He was produced before the S.H.O., Raxaul along with the seized charas weighing 2.5 kgs.
5. On the basis of the aforestated information given to the Police, Raxaul P.S. Case No. 92 of 2012 was registered under Sections 20, 22, 23 and 24 of the N.D.P.S. Act against the appellant and investigation was taken up. On completion of investigation, charge sheet was submitted before the trial court pursuant to which cognizance was taken. After complying with the mandatory requirements of Section 207 of the Code of Criminal Procedure charges were framed against the appellant for the offences punishable under Sections 20(b)(ii)(C) and 23(c) of the N.D.P.S. Act. The appellant denied the charges. Accordingly, the trial commenced.
6. During trial altogether 7 witnesses namely Lans Nayak David Sonowal (PW1), Gagan Gurang (PW2), Jaiparakash Sah (PW3), Baswant Kambale (PW4), Benkenta Rasna Baiyena (PW5), Dhana Jee Bhimrao (PW 6) and Md. Satar (PW7) were examined in support of the charges.
7. PW1 Lans Nayak David Sonowal, who is the informant of the case, has corroborated his initial version as narrated in the FIR in his examination-in-chief. In cross-examination, he proved the notice for search under Section 50 of the N.D.P.S. Act which was marked as Exhibit-1, his own signature on the proforma of intercepted goods which was marked as Exhibit-2, signa
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