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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR, J.
Criminal Appeal (SJ) Nos. 2172, 2220 with 2493 of 2017
(30.8.2018)
Devendra Mahto @ D. Marka
(in 2172)
Babu Saheb Mahto (in 2220)
Md. Shamsul & Anr. (in 2493) – Appellants
vs.
State of Bihar – Respondents
(in all)
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 21 and 22 – Indian Penal Code, 1860 – Sections 401 and 414/34 – Sedating and robbing of passengers in train – Conviction and sentence – Prosecution of appellants for offence under Section 401 of I.P.C. is only on the basis of presumption of witnesses that appellants are members of a gang of robbers and have tainted background – However, nothing has been brought on record to indicate that because of their being members of gang, anyone of appellants had been convicted in the past – Since no stolen article was recovered from possession of anyone of appellants, their conviction and sentence under Section 414 of I.P.C. is also highly presumptuous and avoidable – With respect to conviction and sentence of appellants under Sections 21 and 22 of N.D.P.S. Act, 1985, mandatory requirements under Sections 42(2), 50 and 52-A of Act have not been complied with – In absence of any proof of compliance of mandatory requirements, case of prosecution has become absolutely doubtful – Biscuits which were found to be in possession of appellants, were not found to be containing any basic drug for prosecution to infer that biscuits were meant to be infused with psychotropic substance for the purposes of sedating passengers and, thereafter, robbing them – Only for possession of biscuits, offence for which appellants have been charged, cannot be made out – Appellants acquitted. (Paras 15 to 18)
Ashutosh Kumar, J. – All the appeals have been heard together and are being disposed of by this common judgment.
2. The appellants have been convicted for the offences under Sections 401 and 414/34 of the Indian Penal Code and Sections 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 by judgment dated 13.06.2017, passed by the learned Special Judge, N.D.P.S. Act, Samastipur in Case No. 1501 of 2016, arising out of Samastipur Rail P.S. Case No. 69 of 2015 (N.D.P.S. Case No. 01 of 2016), and by order dated 16.06.2017, they have been sentenced to undergo rigorous imprisonment for seven years, to pay a fine of Rs. 50,000/- each and in default of payment of fine, to further suffer rigorous imprisonment for six months for the offence under Section 401 of the I.P.C.; rigorous imprisonment for three years, to pay a fine of Rs. 50,000/- each and in default of payment of fine, to further suffer rigorous imprisonment for six months for the offence under Section 414 of the I.P.C. and rigorous imprisonment for ten years, to pay a fine of Rs. 1,00,000/- each and in default of payment of fine, to further suffer rigorous imprisonment for one year for the offences under Sections 21 and 22 of the N.D.P.S. Act. The sentences have been ordered to run concurrently.
3. The case of the prosecution is based on the self-statement of Sanjay Kumar Singh (informant/P.W. 2), the Officer-in-Charge of G.R.P. Samastipur, which was lodged on 06.11.2015. He has alleged that on 05.11.2015, he was informed that appellant/Md. Shamsul (Cr. Appeal (SJ) No. 2493/2017) along with two other members of his team, viz. appellant/Md. Masum (Cr. Appeal (SJ) No. 2493 of 2017) and Devendra Mahto @ D. Marka (Cr. Appeal (SJ) No. 2172/2017), have boarded Jan Sadharan Express for the purposes of sedating and, thereafter, robbing the passengers. The aforesaid information was noted down in the station diary and the escort team in the train was alerted. A seize was laid at the Samastipur Railway Station at Platform No. 1. The informant (P.W. 2) along with the police party boarded the train. Three of the appellants, viz. Md. Shamsul, Md. Masum and Devendra Mahto @ D. Marka were searched and from their possession mobile telephones, Ativan, Etizolam and Almox tablets and biscuits were recovered. The aforesaid three appellants informed the police party that they were accompanied by the other two appellants, viz. appellant/Babu Saheb Mahto (Cr. Appeal (SJ) No. 2220/17) and Govind Kumar Mahto @ Natwar @ Govind Mahto (Cr. Appeal (SJ) No. 2172/17), who could manage to escape at Rosera Station. They further disclosed that they had boarded the train at Hajipur. Some of the fellow passengers informed the police party that the appellants were eating biscuits and were also persuading the other passengers to consume the same. Two of the passengers, viz. P.Ws. 8 and 9 did not accept the biscuits and informed the police about the attempt of the appellants to feed the passengers with biscuits. After alighting from the train at Hasanpur and on the pointing of the appellant/Md. Shamsul, a raid was conducted, whereafter appellants/Babu Saheb Mahto and Govind Kumar Mahto @ Natwar @ Govind Mahto were arrested. However, nothing was recovered from the possession of the aforesaid two persons.
4. On the basis of the aforesaid self-statement, Samastipur Rail P.S. Case No. 69 of 2015, dated 06.11.2015, was registered for investigation for the offences under Sections 401 and 414/34 of the I.P.C. and Sections 20 and 22 of the N.D.P.S. Act, 1985.
5. The police, after investigation, submitted charge-sheet, whereafter cognizance was taken and the case was committed to the Special Court for trial and disposal.
6. The learned Trial Court, after having examined ten witnesses on behalf of the prosecution, convicted and sentenced the appellants as aforesaid.
7. While assailing the judgment and order of conviction and sentence, the learned Advocates appearing for the appellants have submitted that the pro
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