Parshuram Bind vs State Of Bihar - 2021 Supreme(Pat) 890

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Pat) 890

IN THE HIGH COURT OF PATNA
Ashwani Kumar Singh, Arvind Srivastava, JJ.
Parshuram Bind And Others - Appellants
Versus
The State Of Bihar - Respondent
Criminal Appeal (Db) No. 404 of 2016
Decided On : 25-02-2021

Advocates:
Advocate Appeared:
For the Appellant : Mr. Ansul, Adv, Mr. Abhinav Ashok, Adv, Mr. Aditya Pandey, Adv, Ms Sagarika, Adv, Mr. Navneet Kumar, Adv
For the Respondent: Ms Shashi Bala Verma, APP

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20(b)(ii)(C) – Seizure of Ganja – Conviction and sentence – Trial court has examined accused appellants under Section 313 of Cr.P.C in a slipshod manner – Several incriminating circumstances associated against them were not explained in order to seek their explanation – Circumstances not put to accused persons in their examination under Section 313 of Cr.P.C cannot be used against them – Witnesses examined on behalf of prosecution are not consistent – In FSL report weight of samples sent to FSL has not been mentioned – It remains a mystery as to what quantity of Ganja was drawn as sample and sent to FSL for test – Seal has not been produced in court – There is no definite statement with regard to sealing by any witness – There is nothing on record to show as to who and where samples of contraband were kept between date of seizure and date of their transmission to FSL and thereafter – There is nothing on record to suggest that 66 kg Ganja was actually recovered or kept anywhere in custody of S.H.O. or Malkhana incharge – Seized Ganja was never produced before court – It is not even case of prosecution that seized Ganja was disposed of in terms of Section 52-A of NDPS Act – Story of seizure of 66 kg Ganja itself becomes highly doubtful – Prosecution has failed to prove that information regarding transportation of consignment of Ganja received by S.H.O. was transmitted in writing to any superior officer – Procedural requirements as contemplated under Section 42(2) of NDPS Act were not complied with at all – Non-compliance of provisions of Sections 42 and 57 of NDPS Act has seriously prejudiced case of defence – Witnesses examined during trial have contradicted each other on vital issues – Appellants are entitled to benefit of doubt – Judgment of conviction and order of sentence set aside. (Paras 32, 33, 36, 37, 38, 39, 41, 45, 46, 47, 49 and 50)
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 42 – Power of entry, search, seizure and arrest without warrant or authorization – For application of Section 42 of NDPS Act, it is necessary that officer empowered thereunder, before exercise of his right, has reason to believe from personal knowledge or information received regarding movement of narcotic drug or psychotropic substance – However, if action is taken not upon his personal knowledge or information received, requirements of Section 42 of NDPS Act would not be applicable – Under Section 42(2) of NDPS Act, such empowered officer, who takes down any information in writing or records grounds under proviso to Section 42(1), is required to send a copy thereof to his immediate official superior within 72 hours – Whether there is adequate or substantial compliance with Section 42 of NDPS Act or not is a question of fact to be decided in each case. (Paras 43 and 44)
Criminal Procedure Code, 1973 – Section 313 – Examination of accused – Purpose of enquiry report and to examine accused under Section 313 of Cr.P.C. is to meet requirement of principle of natural justice that no one should remain unheard – Question under Clause (1)(a) is discretionary – It empowers court to put such questions to accused as court considers necessary for the purposes of enabling him personally to explain any circumstances appearing in evidence against him at any stage without previously warning – However, clause (1)(b) empowers court to question accused generally on the day after witnesses for prosecution have been examined and before he is called upon for his defence – It casts duty on court to give opportunity to accused to explain incriminating material against him. (Paras 24 and 26)

JUDGMENT :

Ashwani Kumar Singh, J.

Heard Mr. Ansul, learned counsel for the appellants and Ms Shashi Bala Verma, learned Additional Public Prosecutor of the State.

2. The appellants have preferred the present appeal against the judgment and order dated 29.02.2016 and 05.03.2016 respectively passed by the learned 1st Additional Sessions Judge, Gopalganj in Trial Case No. 42 of 2013 arising out of Vijayepur PS. Case No. 28 of 2013 whereby they have been held guilty of the offences punishable under Section 20(b) (ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act') and sentenced to undergo R.I. for 12 years and to pay a fine of Rs. 1,00,000/- each and on failure to pay the amount of fine to undergo imprisonment for a further period of three years.

3. The first information report (for short 'FIR') of Vijaipur PS. Case No. 28 of 2013 was registered on 28.02.2013 at 2:30 p.m. on the basis of written statement of Station House Officer of Vijayepur Police Station Mr. B.P. Alok. He had recorded his self-statement on 28.02.2013 at 5:00 a.m. at village Dobhal on Gangachapar Majhbaliya main road. In his written statement, he has recorded that he received an information from Sub-Inspector of Police (for short 'SI') Mr. H.N.Singh at 2:30 a.m. on 28.02.2013 to the effect that one white Indigo CS car bearing registration No. UP32BE-8398 loaded with Ganja is likely to pass through Majhbaliya Bazar to Mushahari Bazar in the night. The information so received was entered into station diary entry and an information in this regard was sent to the Sub-Divisional Police Officer (for short 'SDPO') Mr. Anand Kumar Pandey. The SI H.N.Singh, who was on night patrolling duty, was directed to be vigilant and await for the Indigo car. Hetook Chowkidar Pawan Kumar Singh and Ram Pyare Gond and proceeded to Gangachapar Majhbaliya main road where the SI H.N.Singh, who was on patrolling duty, was present from before. They all kept waiting for the white Indigo car regarding which the information was received to pass. At around 3:30 a.m. the SDPO also reached there. Immediately after his arrival, a white Indigo car was seen coming towards them. On seeing the police patrolling party, two persons, who were sitting inside the car came out and started fleeing away. The police patrolling party apprehended them after a brief foot pursuit.

4. It is further stated in the self written statement by Mr. B.P. Alok that in order to verify the prior information received by the police, a search of the suspected car was made in presence of two independent witnesses, namely, Gorakh Ram and Dwarika Gond and from the dickey of the car, two white coloured plastic bags containing 25 packets of Ganja each and a red coloured polythene bag containing two bundles of Ganja were recovered. At the place of search of the vehicle itself, ASI Rajesh Kumar Hansda brought weighing machine from Sanjay Gupta. The recovered Ganja from the dickey of the Indigo car was weighed. Total weight of 50 packets Ganja found from the white coloured plastic bags was 50 kg and the total weight of Ganja recovered from two packets found from red coloured polythene bag was 16 kg. The contents of all the bags were mixed and three samples of 250 gm each were drawn. They were marked as S-1, S-2 and S-3. The samples were sealed and labelled before the independent witnesses, who signed on them and the signature of the accused persons was also taken on the same.

5. On the basis of the aforestated self written statement, Mr. B.P. Alok, the Police sub-inspector-cum-S.H.O. registered a formal FIR under Sections 8, 20 and 22 of the NDPS Act against the appellants and handed over the investigation of the case to S.I. H.N. Singh.

6. On completion of investigation, the investigating officer found the allegations made in the FIR to be true and sent up the appellants for trial for the offences punishable under Sections 8, 20 and 22 of the NDPS Act. After taking cognizance of the offence and supplying the