2021 Supreme(Pat) 1113

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH and MADHURESH PRASAD, JJ.
Criminal Appeal (DB) Nos.1102, 1197 and 1305 of 2017
(15.9.2021)
Ashok Kumar (in 1102)
Mumtaj Dewan (in 1197)
Mahendra Kumar Rathaur
@ Mahendra Singh Rathaur
(in 1305) ... Appellant
vs.
State of Bihar & Ors. ... Respondents
(in all)

Headnote:

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20(b)(ii)(C) read with Sections 29 and 42 – Seizure of Charas – Conviction and sentence – In statements recorded under Section 313 of Cr.P.C., it was not brought to notice of appellants that contraband seized from their possession was sent to Forensic Science Laboratories, Patna for test and result of examination confirmed that seized article was found to be Charas – There was no prior information that three riders on a motorcycle were transporting or carrying Charas – If police officer, who by chance recovers narcotics is not an empowered officer, then immediately after finding narcotics, he is required to inform empowered officer, who is required thereafter to proceed in accordance with provisions of NDPS Act – If he happens to be an empowered officer also, then from that stage onwards, he would be required to investigate in accordance with other provisions of NDPS Act. (Paras 27, 37, 39 and 43)

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20(b)(ii)(C) read with Sections 29, 42 and 52-A – Clauses 1.4, 1.5, 1.6 and 1.9 of Standing Instruction No.1/88 dated 15.03.1988 issued under Section 52 of NDPS Act – Seizure of Charas – Conviction and sentence – To prove a charge under NDPS Act, representative samples must be drawn from seized substances and sent to such experts in designated laboratory for chemical analysis and report confirming presence of narcotic drugs or psychotropic substances in seized substances – There is nothing on record to show that Seizing Officer sealed seized articles at place of seizure or at any time even thereafter in terms of Clause 1.4 of Standing Instruction No. 1/88 – There is also no evidence to suggest that any sample from seized articles was drawn on spot of recovery in presence of accused in terms of Clause 1.5 of Standing Instruction – Not sealing seized packets and not collecting sample at initial stage of seizure were defects which could not have been cured later on – Standing Instruction No.1/88 dated 15.03.1988 do not have force of law and they are directory in nature and intended to guide officers and to see that a fair procedure is adopted by investigating agency of a case during investigation – However, complete non-compliance with guidelines issued under the Instruction creates grave suspicion on reliability of prosecution case – There is no evidence that packets of Charas seized from possession of appellants were assigned a serial number – There is admission by I.O. as well as Seizing Officer that Charas found in each of packets was not weighed separately – Seizing Officer neither sealed seized contraband nor he put his seal over it – There is also no evidence that contents of packets were well mixed to make it homogeneous and representative before sample in duplicate was drawn – Samples were not sealed in presence of appellants and seizure witnesses – Official seal of I.O. before whom seized contraband was produced was not produced before Court – There is also no evidence to show that sample sent to Forensic Science Laboratories, Patna or Central Forensic Science Laboratories, Kolkata drawn from articles said to have been seized from beneath motorcycle in question were drawn from seized articles from appellants by Seizing Officer – There is total non-compliance with guidelines issued in Standing Instruction No.1/88 dated 15.03.1988 in respect of sealing, sampling and dispatching seized sample to Forensic Science Laboratory for test, which makes entire prosecution case doubtful – 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 appellants – Circumstances which were never put to appellants during trial would not have been used against them for conviction and sentence – Investigation of case was perfunctory – Defects in investigation are substantial and go to root of identity of alleged articles recovered from motorcycle in question – These lapses on part of investigation and prosecution would certainly affect credibility of prosecution case – There are several discrepancies in evidence – Prosecution has failed to prove its case beyond reasonable doubts against appellants – Appellants acquitted of charges levelled against them. (Paras 44, 47, 49, 53, 54, 60, 65 to 68)

Criminal Procedure Code, 1973 – Section 313 – Examination of accused – Object of Section 313 of Code is to enable accused to explain circumstances against him in evidence personally except where statute provides otherwise – Section 313 of Code provides accused a fair chance to explain his stand with regard to circumstances in evidence which have been collected against him and has come on record during a trial – If questions on incriminating circumstances have been ignored by trial Court, then it is an illegality and amounts to abuse of process of Court – Questioning of accused under Section 313 of Code should not be treated as an empty formality as it is an important facet of trial. (Paras 62 to 64)