Prosecution's failure to comply with mandatory provisions of the NDPS Act led to the acquittal of the appellants due to insufficient evidence.

JUDGMENT :

(Chandra Shekhar Jha, J.)

1. At the outset, it is important to mention that all above named appeals are disposed herewith through this common judgment, as same arises out of NDPS Case No. 34/2017, arising out of Barahara P.S. Case No. 302/2017 disposed by learned 4th Additional Sessions Judge-Cum-Special Judge, Excise, Bhojpur, Ara.

2. Heard Mr. Raju Kumar Singh, Advocate assisted by Mr. Praveen Kumar, Advocate and Ms. Anju Kumari Sinha, Advocate appearing for the appellant/convict and Mr. Mukeshwar Dayal, learned APP appearing for the State in Cr. Appeal (SJ) No. 885 of 2023), Mr. Raju Kumar Singh, learned counsel appearing for the appellant and Mr. A.M.P. Mehta, APP appearing for the State in Cr. Appeal (SJ) No. 2430 of 2021 and Mr. Uday Kumar, Advocate assisted by Mr. Subhen Sarkar appearing for the appellants/convicts and Ms. Anita Kumari Singh, learned APP appearing for the State in Cr. Appeal (SJ) No. 2746 of 2021.

3. All above mentioned appeals preferred under Section 374 (2) of the Criminal Procedure Code (in short Cr.P.C.) challenging the judgment of conviction dated 28.01.2021 and order of sentence dated 30.01.2021 rendered by learned IVth Additional Sessions Judge-Cum-Special Judge, Excise, Ara, Bhojpur in NDPS Case No. 34/2017, arising out of Barahara P.S. Case No. 302/2017 for the offence punishable under Section 20(b)(II)(c) of the Narcotic Drugs and Psychotropic Substance Act and, are ordered to undergo rigorous imprisonment for 10 years and a fine of Rs. 1,00000/- (Rupees one lacs), and in default of payment of fine, they shall have to undergo simple imprisonment for a period of six months. The period already undergone shall be set off. Both the sentences will run concurrently.

4. The brief prosecution case, as it appears from the written information of informant/PW-5 that on secret information, raid was conducted in the house of appellants/convicts, and in same series, where, at first instance from the house of appellant/convict, namely Sunil Kumar Singh @ Chutur Singh in Cr. Appeal (SJ) No. 2746 of 2021 was raided, where upon search, in three plastic packets, ganja were recovered, which upon weighing found 50 Kg in each plastic packets, total of 150 grams. Thereafter raid was conducted in the house of appellant/convict Birendra Singh, appellant of Cr. Appeal (SJ) No. 2746 of 2021, where in two bags, two quintals of ganja was recovered, thereafter the raid was conducted in the house of Santosh Rai of Cr. Appeal (SJ) No. 2430 of 2021, where from his straw store house, one quintal of ganja in two cotton bags (Bora) each of 50 Kg was recovered and lastly from the house of appellant/convict Jodha Paswan of Cr. Appeal (SJ) No. 885 of 2023, 45 Kg of ganja was recovered. None of the appellants/accused were found at their residents at the time of conducting raid.

5. On the basis of aforesaid written information, Barahara P.S. Case No. 302 of 2017 was registered, whereupon investigation, the charge sheet was submitted for the offences punishable under Sections 20(b)(ii)(c) of the NDPS Act, against aforesaid appellants/convicts.

6. Learned trial court took cognizance of aforesaid case on the basis of materials available on records collected during investigation against all above-named appellants/accused, whereas charges were framed against all appellants/accused on 12.04.2019 under Sections 20(b)(ii)(c) of the NDPS Act, which they pleaded “not guilty” and claimed tried.

7. To established its case before the learned trial court, the prosecution altogether examined total of seven witnesses, namely, PW-1 Ashok Kumar Singh (Constable), PW-2 is Upendra Sharma (Constable), PW-3 Suryadeo Singh (Constable), PW-4 Arun Kumar (Magistrate and member of raiding team), PW-5 Kundan Kumar (Informant), PW-6 Kumar Saurab (D.I.U. Incharge) and PW-7 Akhilesh Kumar (S.I. and I.O. of the case).

8. The prosecution also exhibited following documents during the trial to substantiate its case which are as:-

Exhibit 1 to 4 – Signature of Magist