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2018 Supreme(Pat) 1874
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Criminal Appeal (SJ) Nos. 2859 with 2873 of 2018
(24.9.2018)
Chhotu Rao @ Manishek Rao (in 2859)
Vinay Sharma (in 2873) – Appellants
vs.
State of Bihar – Respondents
(in both)
For the Appellants : M/s Satyavrat Verma, Shashank Chandra, (in 2859); Manoj Kumar, (in 2873).
For the State : Mr. Sujit Kumar Singh, (in 2859).
For the Respondent: Mr. Sujit Kumar Singh, (in 2873).
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20(b)(ii)(C) read with Sections 50, 52, 53, 55 and 57 – Seizure of Charas – Conviction and sentence – There is no clarity in case of prosecution as to whether recoveries of alleged contraband were made from plastic bag or from polythene packet – Witnesses examined on behalf of prosecution have spoken differently – There are three different stories being narrated by members of raiding team with regard to recovery of alleged contraband – Even if Block Development Officer being a Gazetted Officer was present at place of occurrence when search and seizure was carried out, there is no evidence that officer who carried search and seizure, informed accused persons of their right to be searched in presence of a Gazetted Officer or a Magistrate – Failure to inform them about existence of their right has certainly caused prejudice to them – Relevant provisions of NDPS Act, as provided under Sections 52, 53, 55 and 57, have completely been ignored by investigating officer – There is nothing on record to suggest that articles seized were sealed and signed by seizing authority – Person who has produced seized articles before Court has admitted that sealed packet did not contain signature of any officer – There is also nothing to show that narcotic was kept in seal cover in Malkhana – It is not known what happened to remittance of sample sent to FSL – Original seal has not been produced in court – Forensic expert has not been examined – All these infirmities create doubt about bona fide and genuineness of sample sent to FSL – Impugned judgment of conviction and order of sentence set aside. (Paras 20, 21, 22, 25, 28 to 34)
Ashwani Kumar Singh, J. – Heard Mr. Satyavrat Verma and Mr. Manoj Kumar, learned advocates for the appellants and Mr. Sujit Kumar Singh, learned Additional Public Prosecutor for the State.
2. These two appeals are directed against the common judgment of conviction and order of sentence dated 26.05.2018 and 30.05.2018 respectively passed by the learned District and Sessions Judge-cum-Special Judge, NDPS Act, West Champaran, Bettiah in Trial No. 22 of 2016/ CIS No.-NDPS- 02 of 2018 arising out of Shikarpur P. S. Case No. 268 of 2016 whereby and whereunder each of the appellants has been convicted for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) and sentenced to undergo rigorous imprisonment for a term of 10 years with fine of Rs.1,00,000/- (one lakh) and in default of payment of fine to further undergo imprisonment for two years.
3. The first information report (for short ‘the FIR’) of the case was instituted on 19.06.2016 at 08.15 a.m. on the basis of self-statement of Sub-Inspector of Police-cum-SHO, Shikarpur Police Station, Binod Kumar Singh wherein it is stated inter alia that on 19.06.2016, at 7.15 a.m., he received secret information that in Narkatiaganj near Pokhara Chowk, 2-3 miscreants are strolling with some illegal substance in a polythene packet and their activities are doubtful. On receipt of such information, he made an entry in the station diary and proceeded towards the place of occurrence with other police personnel after informing the Block Development Officer, Narkatiaganj. On seeing the police party, the miscreants started fleeing away. The raiding team chased and caught hold of two of them while one succeeded in fleeing away. In presence of the Block Development Officer, Narkatiaganj and two independent witnesses, the apprehended accused persons were interrogated and they disclosed their names as Chhotu Rao and Vinay Sharma. They also disclosed the name of the third miscreant, who had managed to escape, as Kundan Tiwari. Thereafter, on search, 1 Kg. Charas like substance wrapped in yellow polythene and kept in plastic bag was recovered from each of the accused. On query, they could not give any satisfactory reply regarding possession of the substance. On further inquiry, they disclosed that they along with Kundan Tiwari trade in illegal business of Charas for higher income. They also disclosed that they were on their way to go to Gorakhpur by train.
4. On 19.06.2016 itself, in presence of two independent witnesses, namely, Kedar Paswan and Awadhesh Sharma, the informant prepared seizure-list. After search and seizure was carried out, the accused persons were arrested and were produced before the court from where they were remanded to judicial custody.
5. After institution of the FIR, the SHO of Shikarpur Police Station handed over investigation of the case to an Assistant Sub-Inspector of Police, namely, Birendra Singh, who took over the investigation, recorded the statements of witnesses and, on completion of investigation submitted report, vide Charge-Sheet No. 409 of 2016 dated 06.08.2016.
6. On receipt of police report, vide order dated 17.08.2016, the learned Special Judge took cognizance of the offences punishable under Sections 20(b)(ii)(C) and 22(c) of the NDPS Act finding a prima facie case to be made out against the appellants and one another.
7. After complying with the mandatory requirements of Section 207 of the Code of Criminal Procedure, charges under Sections 20(b)(ii)(C) and 22(c) of the NDPS Act were explained to the accused persons by the trial court on 28.09.2016 to which they pleaded not guilty.
8. In course of trial, the prosecution examined altogether 8 witnesses. Out of whom, P.W. 1 and P.W. 2 are seizure-list witnesses, P.W. 3 to P.W. 7 are police personnel and P.W. 8 is a formal witness, who had produced the seized substance before the court.
9. Apart from oral testimony, the prosecution also proved
