The prosecution must comply with mandatory procedural requirements in drug cases, failing which foundational facts required to establish guilt cannot be met, leading to acquittal.

JUDGMENT :

JITENDRA KUMAR, J.

1. The present appeal has been preferred against the impugned judgment of conviction and order of sentence dated 16.12.2020, passed by Ld. District and Sessions Judge-cum-Special Judge, NDPS Act, West Champaran at Bettiah in Sessions Trial No. 18 of 2017/C.I.S. No. 23 of 2019, arising out of Kangali P.S. Case No. 08 of 2017, whereby the sole appellant has been found guilty of offence punishable under Sections 20 (b) (ii)(c), 22(c) and 23(c) of NDPS Act and sentenced to undergo R.1. for 10 years and to pay a fine of Rs.1,00,000/- for each offences separately, total amounting to Rs.3,00,000/- and in case of default to pay the fine, to undergo additional S.I. for nine months for each default.

Prosecution Case

2. The prosecution case as emerging from the written report of the informant L. Hemo Singh addressed to Officer-in- Charge, Kangali, West Champaran, Bihar is that at 12 O'clock on 24.01.2017 he got information from Deputy Commandment that one person of height of 5'4" aged about 60 years, wearing white Kurta and Pajama is about to pass border pillar No. 403/12 (49). After getting information, he constituted one team and proceeded at 12:20 O'clock to the said border pillar which was 500 meters away from railway track. By 14 O'clock the person of the said description came and when he was crossing the railway track, he caught him. He asked him whether he wanted to be searched before a Gazetted Officer. But the person confessed to his guilt stating that he has five packets Charas-one packet in his pocket and four packets in his bag. All packets were covered by cello tape. On the spot, he got the seized article weighed by digital weighing machine. He also got it tested by NDPS detection test kit and came to know that the article was Charas weighing 2.4 k.g. On enquiry, he stated his name as Ali Haque S/o late Md. Moosa, R/o Ward No.04 Kalibag, Bettiah, West Champaran. Aforesaid occurrence was informed to Executive Commandment Sri Pravin Kumar on phone, whereupon he directed him to register a case under NDPS Act and prepare a seizure list. As directed, Ali Haque was arrested at 14:15 O'clock.

Factual Background

3. On the basis of the written report of the informant, FIR bearing Kangali P.S. Case No. 08 of 2017 was registered on 24.01.2017 at 18:35 P.M. against the sole accused/appellant Ali Haque for the offence punishable under Sections 8 /20 (b)(ii) B of N.D.P.S. Act.

4. After registration of the FIR, the investigation commenced and charge-sheet bearing No. 08 of 2017 dated 30.03.2017 was filed against the Appellant, Ali Haque under Sections 8 /20 (b)(ii) B of N.D.P.S. Act. Subsequently, cognizance was taken and charges were framed against the Appellant/accused under Sections 20 (b)(ii)(c), 22(c) and 23(c) of NDPS Act. The charges were read over and explained to him to which he pleaded not guilty and claimed to be tried. Hence, the trial commenced.

5. During the trial, the following five witnesses were examined on behalf of the prosecution:

(1) P.W.-1-L. Hemo Singh (Informant)

(2) P.W.-2-Santanu Roy

(3) P.W.-3-Anuj Kumar

(4) P.W.-4-S. Gilbert Singh

(5) P.W.-5-Shamim Akhtar Hawari, I.O.

(6) P.W.-6-Sudhir Kumar

6. The prosecution brought on record the following documentary evidence also:

(i) Ext. 1-Confessional statement of the accused;

(ii) Ext. 2-Production-cum-seizure l