Failures and inconsistencies in the prosecution's case, including unexplained delay in informing the police, contradictions in the evidence of prosecution's witnesses, and failure to produce the seized materials before the court, led to the court's decision to set aside the appellant's conviction.

JUDGMENT :

CHAKRADHARI SHARAN SINGH, J.

Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.

2. By the impugned judgment dated 24.03.2017 and order of sentence dated 28.03.2017 passed by learned 7th Additional Sessions Judge, East Champaran, Motihari in connection with NDPS Case No. 121 of 2013 arising out of Raxaul P.S. Case No. 246 of 2013, the appellant has been convicted and sentenced as under:

Conviction under Section Imprisonment Sentence

Fine (Rs.) In default of fine

under Section 20(b) ii (c) & 23© of the NDPS Act Rigorous Imprisonment for life 1,00,000/- Rigorous imprisonment for one year

3. Kamal Chandra Sarkar, ASI (G.D) (PW-1) posted at Pantoka is the informant on whose written information furnished to the officer-in-charge, Raxaul P.S. Case No. 246 of 2013 was registered. He alleged in his written information dated 16.08.2013, that at about 12:15 pm on 16.08.2013, the Incharge of E. Company, Pantoka, had received an information that two persons were coming with narcotic drugs from Nepal to Raxaul through Bhelahi road. Based on the direction issued to him, the informant proceeded towards the place and at about 12:55 pm, they noticed that two persons dressed as indicated in the secret information were seen coming from Nahar Chowk, Raxaul to Koraiya Tola. They were intercepted when they came nearer to the team led by the Informant. The informant disclosed to them his identity and the secret information which was available with the SSB and explained to them their right to be searched before a Gazetted Officer or a nearby Magistrate. They, however, agreed to be searched by the Informant. Two passersby who were crossing the place were requested to become witnesses to the seizure list to which they agreed. The names of the persons who agreed to be the witnesses to the seizure as disclosed in the FIR were Kameshwar Mahto (not examined) and Jogindra Mahto (not examined).

4. The persons so intercepted by the informant disclosed their names as Baijnath Mahto (the appellant) and Papu Paswan. They were given option to make search of the persons of the patrolling team of SSB which they declined. Thereafter, the patrolling party made a search leading to recovery of a red-coloured bag which the appellant was carrying. In the said bag certain suspicious article was found wrapped in a grey tape with the use of narcotics detection kit, the article so wrapped was found to be charas. With the use of weighing machine, which the patrolling party was carrying, weight of the seized articles was taken and found to be 1.800 kg.

5. Both of them were arrested at about 13:10 pm and a seizure list was prepared on which the seizure list witnesses put their signature. One copy each of the seizure list was handed over to the persons apprehended by the SSB personnel.

6. It is pertinent to note at this juncture itself that the FIR was registered with the Raxaul Police Station at about 10:00 pm based on the information which was given at the Police Station at about 10:00 pm. By the informant It is evident thus that the information was given to the police by the informant nearly 9 hrs after the appellant and co-accused Papu Paswan were arrested. It is also evident from the FIR (Exhibit-9) that the distance of the Police Station from the place of occurrence was 1 Km. The police upon completion of investigation submitted chargesheet on 30.11.2013 against the appellant and co-accused Papu Paswan, apparently because of completion of 90 days from their arrest in order to obviate the chance of grant of compulsory bail under Section 167(2) of the Cr.P.C to the accused persons. It is also noted at this juncture itself that till the chargesheet was submitted, the samples of the intercepted items were not sent for forensic examination as is evident from the evidence of the I.O. (PW 6). The I.O. (PW 6) in his deposition at the trial has clearly stated that much after filing of the chargesheet on 23.12.2013, the samples were sen