Gopi Sah vs State of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Pat) 978

IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and NAWNEET KUMAR PANDEY, JJ.
Criminal Appeal (DB) No.840 of 2022
(3.8.2023)
Gopi Sah ... Appellant
vs.
State of Bihar ... Respondents

Advocates Appeared:
For the Appellant : M/s Krishna Prasad Singh, Sr. Adv., Meena Singh.
For the Respondent: Ms. Shashi Bala Verma, APP.

Headnote:
Narcotic Drugs and Psychotropic Substances Act (NDPS) Act), 1985–Sections 209b)(ii)(c) and 22–4 quintals 690 grams of ganja and a cash of Rs. 1,36,495/- recovered from the house of the appellant–appellant and his two brothers were allegedly indulged in illegal trade and smuggling of ganja–on close reading of sub-section (1) of Section 42 of the NDPS Act it can be easily culled out that it is imperative for an empowered officer while exercising power under sub-section (1) of Section 42 that he must take down in writing his personal knowledge or information received by him which is the reason for him to believe that the conditions stipulated for exercise of such power exist–in the present case, there is no evidence that the empowered officer, before conducting search had taken down in writing the information or his personal knowledge–secondly, the officials entered into the building after sunset and before sunrise without recording the grounds of his belief that a search warrant or authorization could not be obtained for causing search in the might without affording opportunity for concealment of evidence or facility for escape of the offender; a condition precedent under the second proviso to sub-section (1) of Section 42 of the Act–apparently, keeping in mind the stringent provisions of the NDPS Act and serious consequences sub-section (2) of Section 42 prescribes yet another safeguard and lays down that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within 72 hours send copy thereof to his immediate official superior–sub-section (2) of Section 42 has not been complied–thirdly, there is no evidence at all as to how the sample was drawn–it is evident from the prosecution's case that the sample was not drawn at the time of seizure–there is no clue as to when was the sample drawn–it can, however, be definitely said based on the evidence available on record that the sample was not drawn in the presence of the Magistrate as contemplated under Section 52(A(2) (b) f the NDPS Act–further, dispatch of sample on 113.12.2018 to the FSL of the articles seized n 26.11.2017 adversely affects the entire case of the prosecution–where was the contraband kept, why was there is so much of delay in sending the sample for chemical examination, are few questions which have completely remained unanswered–the failure on the part of the prosecution to produce the seized articles as material exhibit at the trial in the absence of any certification of its disposal, gives another blow to the prosecution case–further, P.Ws. who has not been declared hostile, clearly deposed at the trial this appellant was not present in the house when the search was conducted–he rather deposed that the house was locked from out side and the lock was broken open by the officials–if all the aspects are taken together, the prosecution has failed to prove the charge against the appellant at the trial–conviction, based wholly on the evidence of the informant, the I.O. and other officials who were party to the search and seizure, cannot be upheld–appellant stands acquitted of the charge–impugned conviction and sentence set aside–appeal allowed–appellant directed to be released forthwith. (Paras 13 to 22)

Chakradhari Sharan Singh, J. – By the impugned judgment and order dated 19.09.2022/23.09.2022 passed by the learned Sessions Judge, Saharsa in connection with Special Case No. 7 of 2017, arising out of Mahishi P.S. Case No. 247 of 2017, the appellant has been convicted and sentenced as under: –

Conviction under Section	Imprisonment	Sentence Fine (Rs.)	In default of fine
22(c) of the NDPS Act	RI for 11 years	1,50,000/-	SI for 6 months

2. A self statement of the Station House Officer (SHO) (informant), Mahishi recorded on 27.11.2017, is the basis for registration of Mahishi P.S. Case No. 247 of 2017 disclosing commission of the offences punishable under Section 20(b)(ii) (C) and Section 22 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act in short) which finally gave rise to Special Case No. 7 of 2017 in the court of learned Sessions Judge, Saharsa. It is the prosecution's case as disclosed in the said self statement that the informant received a secret information on 26.11.2017 at 8:10 pm from the Sub-Divisional Magistrate, Saharsa that three sons of one Sonelal Sah namely Ram Pravesh Sah, Ramdhan Sah and this appellant were indulging in illegal trade and smuggling of ganja. Acting on the said secret information a team was constituted headed by the Sub-Divisional Magistrate, Saharsa, Sub-Divisional Police Officer, Saharsa and other officials and police officials/personnel to conduct a raid. The house of Sonelal Sah was thereafter searched in the said night leading to recovery of 4 quintals 690 grams of ganja and a cash of Rs. 1,36,495/-. Two individual witnesses namely Rustam Ali (PW-4) and Md. Haidar Ali (PW- 5) were requested to remain present during the course of search and seizure. A seizure list was prepared at the spot on which all the officials and independent witnesses put their signatures. The appellant was arrested on the spot in the house of Sonelal Sah, according to the prosecution's case. Based on the allegation of the aforesaid effect, the FIR was registered against this appellant, Ram Pravesh Sah and Ramdhan Sah. It was not the prosecution's case that Ram Pravesh Sah and Ramdhan Sah were present in the house at the time of search and seizure of the house. The appellant, according to the prosecution's case was present in the house.

3. We will be dealing with relevant evidence in this regard while considering the depositions of the witnesses. We however, consider it apt to notice at this juncture itself that there is consistent evidence on record to the effect that this appellant resided in a house different from the house where the search was conducted. We also take note of the fact at the outset that we have not seen any evidence as regards the manner in which sample from the recovered articles was drawn for the purpose of the same being sent to Forensic Science Laboratory for chemical examination. Even according to the prosecution's case the sample, in whatever manner drawn, was dispatched to the Forensic Science Laboratories at Patna and Kolkata on 13.02.2018 two and half months after seizure. The sample was received in the FSL Patna eight days thereafter, on 21.02.2018, which was sent through a chaukidar, a special messenger, according to the prosecution's case.

4. Be that as it may, the police upon completion of investigation submitted charge-sheet against this appellant for commission of the offences punishable under Section 20(b)(ii) (C) and Section 22 of the N.D.P.S. Act. Final report was however submitted against two others namely, Ramdhan Sah and Ram Pravesh Sah. The special court took cognizance of the offences punishable under Section Section 20(b)(ii)(C) and Section 22 of the N.D.P.S. Act and proceeded against all the three persons who were named in the FIR. Charges were framed against all the three for commission of offences punishable under Section 22(c) of the N.D.P.S. Act. The appellant and the two co-accused persons denied the charge and claimed to be tried.

5. At the trial