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IN THE HIGH COURT OF JUDICATURE AT PATNA
Ashwani Kumar Singh, Madhuresh Prasad, JJ.
Ashok Kumar Son of Satya Narayan Ram - Appellant
Versus
The State of Bihar - Respondent
Criminal Appeal (DB) No.1102, 1197, 1305 of 2017
Decided On : 15-09-2021
NDPS Act - Conviction under Section 20(b)(ii)(C) read with Section 29 - Summary of Acts and Sections: The court discussed the authority of the Head Constable to conduct search and seizure under Section 42(1) of the NDPS Act, the non-compliance with guidelines for sealing and sampling of seized substances, and the failure to follow the procedure for disposal of seized narcotic drugs. The court found substantial non-compliance with the law, leading to doubts about the credibility of the prosecution case.
Fact of the Case:
The appellants were convicted under Section 20(b)(ii)(C) read with Section 29 of the NDPS Act for possession of charas. The prosecution case was based on the seizure of 16 packets of charas from beneath a motorcycle, but the defense argued that the search and seizure were illegal and the evidence was unreliable.
Finding of the Court:
The court found substantial non-compliance with the law in the search, seizure, and handling of seized substances, leading to doubts about the credibility of the prosecution case. The court also noted discrepancies in the evidence and the perfunctory manner in which the statements of the appellants were recorded under Section 313 of the Cr.P.C.
Issues: The issues included the authority of the Head Constable to conduct search and seizure, non-compliance with guidelines for sealing and sampling of seized substances, failure to follow the procedure for disposal of seized narcotic drugs, discrepancies in the evidence, and the perfunctory recording of the statements of the appellants.
Ratio Decidendi: The substantial non-compliance with the law in the search, seizure, and handling of seized substances, along with discrepancies in the evidence and the perfunctory recording of the statements of the appellants, led to doubts about the credibility of the prosecution case and resulted in the acquittal of the appellants.
Final Decision: The appeals were allowed, and the appellants were acquitted of the charges. The impugned judgment of conviction and the consequent order of sentence were set aside, and the appellants were directed to be set at liberty forthwith unless their detention was required in any other case.
JUDGMENT :
Ashwani Kumar Singh, J.
These appeals are directed against the judgment of conviction dated 25.07.2017 and the consequent order of sentence dated 26.07.2017 passed by the learned 1st Additional Sessions Judge-cum-Special Judge, N.D.P.S. Act, East Champaran, Motihari in N.D.P.S. Case No. 11 of 2014 arising out of Raxaul P.S. Case no. 26 of 2014 whereby and whereunder the appellants in these three appeals have been convicted under Section 20(b)(ii)(C) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). They have been sentenced to undergo rigorous imprisonment for a term of 12 years and to pay a fine of Rs. 1 lac each and on default of payment of fine to further undergo rigorous imprisonment for a period of six months.
2. The prosecution case, in short, is that on 14.01.2014 at 10:10 AM, the informant Mukesh Kumar HC/GD, SSB 13th Battalion Bhelahi, received a piece of information from the Assistant Commandant, SSB regarding the movement of three riders on a Platina Motorcycle somewhere near College Road, Raxaul. Having received such information, the informant constituted a team consisting of seven constables, namely, Sapan Vosi, Ugra Sen Yadav, Damodar Rakesh Bhai, R. Marimathu, Punit Kumar, Dhanna Ram and Ramesh N. They proceeded towards College Road, Raxaul. At about 11:05 AM, they saw three persons coming on a motorcycle. They were stopped by the informant. He disclosed his identity to them. He issued them a notice under Section 50 of the NDPS Act and after taking their consent took their search in the presence of two independent witnesses, namely, Jitan Singh and Ramkaran. However, nothing incriminating was recovered from their possession. Thereafter, during the search of the motorcycle, 16 packets were recovered from beneath the seat. On inquiry, they disclosed that the packets contained charas. The contraband was examined by Drug Detection Kit by the informant, which confirmed that the seized packets contained charas. The total weight of the 16 packets as shown in the weighing machine brought by the informant was 5.5 Kg. On inquiry, they disclosed their identity. They stated that the charas packets were entrusted to them by a resident of Birganj near Parewa Railway crossing for being delivered to a person, namely, Wazir at Sugauli. He had assured them to give Rs. 1500/-for delivery of the consignment to Wazir.
3. Since the informant had conducted a personal search of each of the accused persons (hereinafter referred to as ‘appellants’) in the presence of two witnesses, namely, Ramkaran and Jitan Singh, he prepared respective personal search memos on 14.01.2014 at 11:10 AM under Section 51 of the Code of Criminal Procedure (for short ‘Cr.P.C.’). He prepared a deposition of seized goods and attached it with the proforma of seizure report. He arrested the three appellants and prepared arrest memos in this regard.
4. All the aforesaid processes were completed by the informant on 14.01.2014 at about 11:10 AM.
5. Thereafter, the informant submitted his written report to the S.H.O. of Raxaul Police Station at 7:00 PM on 14.01.2014, based on which, Raxaul P.S. Case No. 26 of 2014 was registered under Sections 20, 22, 23, 24 of the NDPS Act against the appellants and handed over the investigation of the case to Sajjad Gaddi, a Sub Inspector of Police.
6. The Investigating Officer (for short ‘I.O.’) prepared a production-cum-seizure list on 14.01.2014 at 7:00 PM itself in respect of the 5.5 Kg. charas and Platina motorcycle which was seized by the informant of the case in the forenoon on 14.01.2014.
7. A perusal of production-cum-seizure list would make it evident that the seized articles were handed over by the informant Mukesh Kumar in the presence of two constables of the SSB, namely, Ugrasen Yadav and Sapan Kumar Bauri.
8. After preparing the production-cum-seizure list, the I.O. inspected the place of occurrence, recorded the statements of the witnesses, sent the samples of
The main legal point established in the judgment is the requirement for compliance with procedural safeguards and fair procedure in the investigation and trial of cases under the NDPS Act.
Non-compliance with the procedure for drawing up the sample of the narcotic, lack of compliance with the prescribed procedure under the NDPS Act, 1985 at all the stages, and the case being based on t....
The judgment established the significance of producing seized materials as evidence, proper sampling and handling of contraband, and compliance with N.D.P.S. Act provisions for maintaining the credib....
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