IMPORTANT POINT
Non-compliance with statutory provisions and guidelines, doubts about the place of recovery, and serious prejudice caused by the non-examination of independent seizure witnesses can lead to the acquittal of the accused.

JUDGMENT :

Sudhir Singh, J.

Heard learned counsel for the appellant and learned A.P.P. for the State.

2. The present criminal appeal has been preferred against the judgment of conviction dated 17.08.2017, and the order of sentence dated 26.08.2017, passed by Sri Krishna Bihari Pandey, 1st Additional Sessions Judge-cum-Special Judge, N.D.P.S. Act, East Champaran at Motihari in N.D.P.S. Case No. 154 of 2012 whereby and whereunder the appellant has been convicted for the offence under Section 20(b)(ii)(c) of N.D.P.S. Act and sentenced to undergo rigorous imprisonment for a term of twelve years and a fine of Rs. one lac, and in default of payment of fine an additional period of imprisonment for a term of six months. It was further directed that the period already undergone by the appellant in custody will be set of in the said sentence.

3. The prosecution case as per the written report of the informant-cum-S.H.O. Raxaul Police Station is that on 30.11.2012 at 13:00 hours, informant received confidential information about contraband i.e. ‘ganja’ to be kept in the house of accused Ram Brichh Baitha situated at village Chainpur. Thereafter the informant along with other police personnel left the police station in a police jeep and reached near the house of accused Ram Brichh Baitha and surrounded it from all sides. In front of two independent witnesses, namely, Shambhu Sharan Patel and Krishna Prasad of village Chainpur, the house of accused Ram Brichh Baitha was searched and 70 kilogram ‘ganja’ was recovered in 10 bundles each containing 7 kilogram. One person was also arrested during search who disclosed his name as Ram Brichh Baitha. On enquiry, the accused neither produced any licence or valid documents nor replied satisfactorily. Thereafter, a seizure list was prepared in presence of two independent witnesses who also signed on them voluntarily.

4. On the basis of written report of the informant (P.W. 4), Raxaul P.S. case No. 302 of 2012 was registered under Sections 20, 22, 23 and 24 of N.D.P.S. Act and investigation was taken up. On completion of investigation, a charge-sheet was submitted under sections 20(b), 22, 23 and 24 of N.D.P.S. Act and accordingly, cognizance was taken. Thereupon charges were framed against the appellant to which the appellant pleaded not guilty and claimed to be tried.

5. During trial, the prosecution examined altogether five witnesses, namely, PW1 Baleshwar Kisku, PW2 Kundan Kumar Singh (investigating Officer), PW3 Narendra Kumar (member of raiding team), PW4 Ramkishor Singh (informant) and PW5 Suresh Rai (member of raiding team). Prosecution has also produced exhibits as Ext. 1 written application (F.I.R.) about the occurrence, Ext. 1/1 signature of informant on the FIR, Ext1/2 signature of informant on the endorsement. Ext. 2 formal FIR of the instant Raxaul P.S. case No. 302/2012, Ext. 3 seizure list dated 30.11.2012, Ext. 4 confessional statement of accused Ram Brichh Baitha dated 30.11.2012, Ext. 5 forwarding Memo of accused dated 1.12.2012, Ext. 6 petition of I.O. dated 6.12.2012 seeking permission from the Court to send the sample of seized substance to F.S.L., Patna and C.F.S.L., Calcutta. Ext. 7 Court certificate relating to sending of sample to F.S.L., Patna, Ext. 8 Court certificate relating to sending of sample to C.F.S.L., Calcutta, Ext. 9 receiving slip of sample sent to F.S.L., Patna, Ext. 10 receiving slip of sample sent to C.F.S.L., Calcutta, Ext. 11Arrest Memo of accused Ram Brichh Baitha, Ext. 12 F.S.L. report received from F.S.L., Patna (with objection). The defence has not produced any oral or documentary evidence in support of its case. Thereafter, the statement of the appellant was recorded under section 313 of the Cr.P.C. After conclusion of the trial, the learned Trial Court convicted and sentenced the appellant in the manner indicated above.

6. Learned counsel for the appellant submitted that the trial of the instant prosecution suffers from several infirmities which having been o