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2021 Supreme(Pat) 1173
IN THE HIGH COURT OF JUDICATURE AT PATNA
BIRENDRA KUMAR, J.
Criminal Appeal (SJ) Nos. 993,
758, 888 of 2018
(8.3.2021)
Noor Alam @ Jhunna (in 993)
Afroz Alam (in 758)
Sabhapati Ram (in 888) ... Appellants
vs.
State of Bihar ... Respondents
(in all)
For the Appellants : M/s Umesh Chandra Verma (in 993); Anant Kumar Mishra (758); Ms. Mira Kumari (in 888)
For the Respondents: M/s Shyed Ashfaque Ahmad (in 993); Sujit Kumar Singh (758); Zeyaul Hoda (in 888).
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 20(ii)(c) and 22(c) read with Section 50 – Indian Penal Code, 1860 – Sections 489-A/34, 489-C/34 – Constitution of India – Article 21 – Seizure of counterfeit Indian currency and narcotic material – Conviction and sentence – Whether there is adequate and substantial compliance with requirement of Section 50 of NDPS Act or not is a question of fact to be decided in each case – While total non-compliance with requirement would be impermissible, delayed compliance with satisfactory explanation about delay will be acceptable compliance with mandate of Section 50 of NDPS Act – Prosecution evidence on record reveals that police personnel, who were involved in raid, search and seizure, were conscious of requirement of a Magistrate in whose presence search is to be effected – There is complete lake of evidence on record that appellants had consented to be searched by police – In the circumstance, subsequent requirement of Section 50 of NDPS Act was to be followed – Seizure list witnesses were not produced by prosecution and that has prejudiced defence of appellants seriously – Recovered narcotic was in packets and packets were not opened at the spot – There was no material to even suspect that recovered substance was narcotic one – Prosecution has failed to bring on record as to under whose custody recovered substance was kept in police Malkhana nor any Malkhana register has been produced – There is no evidence as to in whose presence, packets of seized material were opened and samples were taken out and sealed nor there is any evidence that from each of four packets samples were taken and sealed and thereafter sent for FSL examination – Fair trial is a constitutional guarantee to an accused under Article 21 of Constitution of India – Fair Trial includes fair investigation – Onus lies on prosecution to demonstrate that investigation was fair enough not to cause any prejudice to accused – Several infirmities were there in investigation including non-compliance of mandates of law and non-support of factum of search and seizure by seizure witnesses – Prosecution has failed to prove charges against appellants beyond reasonable doubt – Mere possession of counterfeit currency notes would not attract mischief of Section 489-C of Indian Penal Code unless there is evidence that possession was with knowledge of its being counterfeit – Nothing has come on record that appellant from whose possession counterfeit currency notes were recovered, had knowledge that same were counterfeit or had reason to believe the same to be forged or counterfeit – Conviction under Section 489-C of Indian Penal Code is otherwise also not sustainable – Contravention of law relating to Cannabis is punishable under Section 20 of NDPS Act – Conviction under Section 22(c) of NDPS Act is otherwise not sustainable in law – Impugned judgment and order set aside – Appeals allowed. (Paras 6, 9, 10, 11, 13, 14, 15, 17 and 18)
Birendra Kumar, J.—All the above named appellants faced trail in Trial No. 10 of 2016 arising out of Bairiya P.S. Case No. 315 of 2015 for offences under Sections 489-A/34, 489-C/34 of the Indian Penal Code and for offences under Sections 20(ii)(c) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”), before the learned Additional Sessions Judge-V, Bettiah. By the impugned judgment and order dated 06.02.2018, the appellants were found guilty for offences under Sections 489-C/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. They were found guilty for offences under Section 20(ii) (c) and 22(c) of the NDPS Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lakh under each of the aforesaid head of the NDPS offences. The sentences have been ordered to run concurrently and in default of payment of fine, the appellants have been ordered to undergo rigorous imprisonment for one year.
2. The prosecution case as disclosed in the self statement of Sub-Inspector Sanjay Kumar of Bairiya Police Station (P.W. 1) is that on 19.12.2015 in the early morning the In-Charge of Technical Cell of S.P. Office, Bettiah, namely, Sunil Kumar (P.W. 2) along with Constable Munna Kumar Sah (P.W. 3) came at Bairiya police station and reported that counterfeit Indian currency and narcotic material are being carried by veteran smuggler Noor Alam @ Jhunna along with his associates and they were moving towards Tilangahi. The informant, for deputation of a Magistrate tried to contact the Circle Officer, Bairiya and the Sub-Divisional Officer, Bettiah on mobile. Since it was 04:00 a.m. no one received the phone and due to paucity of time, the informant along with armed forces and the aforesaid two persons proceeded towards Bagahi Nath Baba Chowk and put an ambush thereat. At about 05.15 a.m., two motorcycles were stopped. On one motorcycle, appellant Noor Alam @ Jhunna and appellant Afroz Alam were sitting and on another motorcycle, appellant Sabhapati Ram was there. The appellants disclosed their names to the police. The informant asked them whether they want to be searched in presence of a Magistrate then the three appellants agreed for search by the police. Thereafter, in presence of Abhay Kumar (not examined) and Amit Kumar (not examined) of village Chuhiharwa, the person of appellant Noor Alam @ Jhunna was searched and from his pocket twenty pieces of Indian currency notes of one thousand denomination were recovered which were counterfeit once and from the dicky of the motorcycle four Kg. of charas like substance was recovered. From beneath the seat of the motorcycle of Sabhapati Ram, half Kg. of charas was recovered. The appellants did not produce any paper, hence, the appellants were arrested.
3. After investigation, the police submitted chargesheet and during trial, prosecution examined altogether four witnesses. P.W. 4 Birendra Kumar Singh is the Investigating Officer of the case.
4. Mr. Umesh Chandra Verma, learned counsel for the appellants contends that several infirmities are there in the prosecution evidence and the learned Trial Judge has recorded the conviction ignoring the same. According to learned counsel, there is total non-compliance of the mandate of Section 50 of the NDPS Act. No independence witness or seizure list witness were examined by the prosecution to corroborate and ensure trustworthiness of the prosecution case and evidences. There is lack of evidence that the seized substance was even suspected as a narcotic material at the time of recovery nor there is any evidence that in whose presence, the samples were taken out and in whose custody, the seized narcotics were kept to inspire confidence regarding non-tampering with the same. Learned counsels for other appellants submits that nothing incriminating was recovered from possession of appellants Afroz Alam or Sabhapati Ram nor there is an
