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IN THE HIGH COURT OF JUDICATURE AT PATNA
Ashwani Kumar Singh, Arvind Srivastava, JJ.
Jagat Prasad S/o Ram Jiwan Prasad - Appellant
Versus
The State of Bihar and ors. – Respondents
Criminal Appeal (DB) No.775 of 2016
Decided On : 19-01-2022
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 20(b)(ii)(C), 52(A) and 67 – Standing Instruction No.1/88 dated 15.03.1988 of NCB – Seizure of Charas – Conviction and sentence – Field test carried by an Intelligence Officer of NCB is only indicative that substance so recovered responded positive to test of Charas – Such indicative test is not admissible as evidence in court – It is only a notified government scientific expert, who can certify the same after chemical analysis in a designated laboratory on the basis of test result obtained – It was important that representative samples should have been drawn from seized substance and sent to such experts in designated laboratory for chemical analysis in accordance with law – It was also important that seized substances and samples should have been handled properly and in prescribed manner – Standing Instruction does not provide for drawing of sample randomly because such a sample would seize to be a representative sample of substance seized from different packages – There is total non-compliance with guidelines issued in Standing Instruction No. 1 of 88 dated 15.03.1988 in respect of sampling and dispatching seized sample to Forensic Science Laboratory for test which creates grave suspicion on reliability of prosecution case – In absence of any proof regarding disposal of seized substance, it was incumbent on prosecution to have produced seized substance before court during trial – Provisions of Sections 52 and 57 of NDPS Act are directory and violation of these provisions' ipso facto would not vitiate trial or conviction, but prosecution cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of accused and seizure of contraband – Appreciation of entire evidence points to inference that NCB team did not associate any independent person during investigation of case and withheld seizure witnesses and 1st Investigating Officer either because nothing took place at place of occurrence or manner of occurrence was different than what is alleged – Officers, who are invested with powers under Section 53 of NDPS Act are Police Officers within meaning of Section 25 of Evidence Act and any confessional statement made before them would attract bar of Section 25 of Evidence Act and cannot be taken into account to convict accused – There are serious infirmities in prosecution evidence – Impugned judgment of conviction and consequent order of sentence set aside. (Paras 41, 43, 44, 47, 49, 52, 53, 58, 59, 64, 75, 76 and 77)
Code of Criminal Procedure, 1973 – Section 313 – Examination of accused – Circumstances which were never put to appellant while examining him under Section 313 of Cr.P.C. could not have been used for his conviction – Object of Section 313 of Cr.P.C. is to enable accused to explain circumstances against him in evidence personally except where statute provides otherwise. (Paras 71 and 74)
(2021) 4 SCC 1; AIR 2002 SC 1450; (2008) 16 SCC 417; (2009) 12 SCC 161; (2004) 10 SCC 562; (2004) 10 SCC 562; (2004) 10 SCC 562; AIR 2011 SC 2296; 2004) 7 SCC 502 – Relied.
JUDGMENT :
Ashwani Kumar Singh, J.
This appeal is directed against the judgment dated 02.07.2016 and the order dated 15.07.2016 passed by the learned Additional Sessions Judge-VII, Patna in Special Case No. 09 of 2013/ N.C.B No. 53 of 2013 whereby and whereunder, the appellant has been convicted for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) and consequently sentenced to undergo rigorous imprisonment for thirteen years and to pay a fine of Rs. 1 lac and in default to undergo rigorous imprisonment for a further period of two and a half years.
2. According to the prosecution case, on 26.02.2013, one Rohit Srivastava, an Intelligence Officer of Narcotics Control Bureau (for short ‘NCB’), Patna Zonal Unit, Patna seized 25.450 kilograms of dark brown coloured semi solid resinous substance believed to be charas from the appellant near Mithapur Bus stand. His statement was recorded under Section 67 of the NDPS Act in which he confessed his involvement in the trafficking of contraband believed to be charas. After that he was arrested and taken into custody at 10:50 PM on 26.02.2013. He was produced by the aforesaid Rohit Srivastava (P.W.4) before the learned Sessions Judge-cum-Special Judge, NDPS Act, Patna on 27.02.2013 with a prayer to remand him to judicial custody, as the case was under investigation and a complaint was likely to be filed. On 27.02.2013 itself, the aforesaid Rohit Srivastava filed another application before the learned Sessions Judge-cum-Special Judge, NDPS, Act, Patna seeking permission for storage of seized contraband under the custody of NCB Malkhana, Patna and further for permission to forward the sample marked as S-1 to be sent to CRCL, Kolkata.
3. On receipt of the aforesaid applications, vide order dated 27.02.2013, the learned Sessions Judge-cum-Special Judge, NDPS, Act, Patna got registered Special Case No. 9 of 2013 and remanded the appellant to judicial custody. He also allowed the prayer made by Rohit Srivastava (P.W.4) and granted him permission to forward the sample to CRCL, Kolkata.
4. Subsequently, on 24.07.2013, a complaint was filed by one Sujit Kumar (P.W.7), an Intelligence Officer of NCB, Patna Zonal Unit, Patna in the Court of Sessions Judge-cum-Special Judge, NDPS Act, Patna stating therein :
(b) That, accordingly, a team consisting of Manoj Shankar (P.W.3), Gyan Prakash (P.W.1), Rohit Srivastava (P.W.4), Subhash Chandra Sinha (P.W.2), Vijay Bahadur (P.W.5), all Intelligence Officers, NCB, Patna Zonal Unit, Patna and Ravi Ranjan Kumar (P.W.6), Surveillance Assistant, (NCB, Patna) with departmental vehicle driven by Anil Kumar Ghosh started from Patna NCB office at 04:45 PM on 26.02.2013 and reached Mithapur Bus Stand, Patna at about 05:40 PM in the evening on the same day.
(c). That, after reaching Mithapur Bus Stand, the team contacted two persons passing nearby and enquired their names and addresses. On being asked, they disclosed their names as Nagendra Kumar S/o Shri Bharat Kumar, resident of Shri Krishnavihar Colony, Beur, Patna and Harishankar, S/o Bideshwari Singh, Village-Naubatpur, Patna, respectively. Thereafter, the team disclosed their identity and the secret information they had and requested them to remain present as independent witnesses during the process of search and seizure of narcotic drug, for which they both agreed.
(
The main legal point established in the judgment is the requirement for compliance with procedural safeguards and fair procedure in the investigation and trial of cases under the NDPS Act.
Non-compliance with the procedure for drawing up the sample of the narcotic, lack of compliance with the prescribed procedure under the NDPS Act, 1985 at all the stages, and the case being based on t....
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