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IN THE HIGH COURT OF JHARKHAND AT RANCHI
KAILASH PRASAD DEO, J.
Dinesh Prasad Gupta, Son of Satish Prasad Gupta - Appellant
Versus
The State of Jharkhand - Respondent
Cr. Appeal (SJ) No. 505 of 2004
Decided On : 30-10-2018
Narcotic Drugs and Psychotropic Substance Act 1985 - Section 8 - Rigorous imprisonment – Appeal against conviction – Claim of compensation - prosecution case is based upon prosecution report submitted in a under Section 78(4) of Act before the Magistrate, which has been proved and marked as exhibit-4 in the present case, stating therein that on secret information, informant Sub-Inspector of Excise Chas Circle along with other excise officials raid the shop of the accused situated at recovered contraband, ganja worth 40 grams, 20 grams kept in plastic bag and 20 grams were found kept in 10 each having 2 grams and a five rupees note in the plastic bag. After such recovery the Excise officials have prepared a seizure list and obtained the signature of two independent witness, in whose presence the said recovery was made. A prosecution report has thereafter been drawn up, under the signature of Sub-Inspector Excise, Chas Circle - Informant has forwarded the accused to the court and also send the sample of the seized material for chemical test before expert – Held, This Court has also taken judicial notice with respect to non-compliance of section 50 of NDPS Act as submitted by learned counsel for the appellant relying upon the judgment reported - This Court has also taken judicial notice of the judgment State of Haryana as reported in particularly in which clarified that section 42 and section 57 of NDPS Act are not interlinked or interdependent and the case State of Gujarat as reported in were some relaxation has been given to the police officer, who is on regular patrolling or investigating some other offences so far compliance of section 42 of NDPS Act is concerned - From perusal of the evidence brought on record this Court is of opinion that the prosecution has miserably failed, in view of the aforementioned judgments, in compliance of the mandatory provisions as contemplated under section 42 of the NDPS Act. This Court has also of the view that seizure witnesses have not been examined in this case and Supreme Court in case of State of Bihar as reported in has extended the benefit of doubt to the appellant, where the seizure witness has turned hostile and the Material Exhibit-1 is also not free from reasonable doubt as appears from the evidence - Under the aforesaid circumstances, as discussed above and relying upon the judgment Supreme Court and that prosecution has miserably failed in discharging duty as contemplated under NDPS Act appellant is hereby acquitted of charge and conviction under section 20 (b) (i) read with section 8 of N.D.P.S. Act - On other hand, on a reading of this Courts judgment in court find that this Court has taken a view that in the trial for an offence under the NDPS Act it was necessary fro prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during trial seized materials as material objects and where contraband materials alleged to have been seized are not produced and there is explanation for failure to produce the contraband materials by prosecution mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under NDPS Act particularly when witnesses have turned hostile - Appeal is allowed
Heard learned counsel for the appellant, Mr. Sarju Prasad assisted by Mr. Atmaram Choudhary, Advocates as well as learned counsel for the State, Mr. Pankaj Kumar, learned Additional Public Prosecutor.
2. The instant Criminal Appeal has been preferred against the judgment of conviction dated 27.02.2004 and order of sentence dated 05.03.2004 passed by the learned 1st Additional Sessions Judge, Bokaro, in N.D.P.S. Case No.01 of 1999, whereby the sole appellant has been convicted for offence committed and punishable under Section 20 (b) (i) read with section 8 of the Narcotic Drugs and Psychotropic Substance Act (N.D.P.S. Act) 1985 and awarded sentence of rigorous imprisonment for a period of two years and also a fine of Rs.10,000/- and in default of payment of fine to undergo further simple imprisonment for a period of six months.
3. The prosecution case is based upon prosecution report submitted in a proforma under Section 78(4) of the Act before the Magistrate, which has been proved and marked as exhibit-4 in the present case, stating therein that on secret information, informant Ramadhar Sharma (P.W.3), Sub-Inspector of Excise, Chas Circle along with other excise officials raid the shop of the accused situated at Anand Bazar, Fushro, under P.S. Bermo, District-Bokaro and recovered contraband, ganja worth 40 grams, 20 grams kept in plastic bag and 20 grams were found kept in 10 purias, each having 2 grams and a five rupees note in the plastic bag. After such recovery the Excise officials have prepared a seizure list and obtained the signature of two independent witness, in whose presence the said recovery was made. A prosecution report has thereafter been drawn up, under the signature of Sub-Inspector, Excise, Chas Circle. The informant has forwarded the accused to the court and also send the sample of the seized material for chemical test before the expert.
4. On the basis of the prosecution report, a case was registered under Section 20 (b) (i) read with Section 8 (c) of N.D.P.S. Act, vide N.D.P.S. Case No. 01 of 1999, dated 26.08.1999.
5. The cognizance of the offence has been taken vide order dated 26.08.1999 and charge has been framed against Dinesh Prasad Gupta under Section 27 of N.D.P.S. Act on 10.01.2000 and under Section 20/8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 on 18.11.2003, to which appellant/accused has pleaded his innocence and thus he was put under trial.
6. The prosecution, in order to prove its case, has examined altogether four witnesses and also exhibited documentary evidence.
Narsingh Kumar Pathak (A.S.I. of Excise) has been examined as P.W.1, Baban Prasad (constable, Excise department) has been examined as P.W.2, Ramadhar Sharma (S.I., Excise department and investigating officer in this case) has been examined as P.W.3 and Sarbjit Narayan Jha (S.I., Mobile force Excise) has been examined as P.W.4.
7. Seizure list in the writing and signature of P.W.3, Ramadhar Sharma has been proved and marked as Exhibit-1, signature of the accused, Dinesh Prasad Gupta on back of the seizure list has been proved and marked as Exhibit-2, carbon copy of forwarding letter before chemical examiner, written by P.W.3, Ramadhar Sharma has been proved and marked as Exhibit-3, Prosecution report in the format as provided under Section 78(4) of the Excise Act has been proved and marked as Exhibit-4 and chemical examination report of chemical examiner, has been proved by P.W.4, Sarbjit Narayan Jha, a formal witness has been marked as Exhibit-5. The ganja sealed has been produced before the Court has been proved and marked as Material Exhibit-1.
8. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr.P.C., on 21.11.2002, to which appellant/accused has categorically submitted, that nothing has been recovered from his possession and he has been falsely implicated in this case.
9. After hearing learned counsel for the parties and on the basis of materials
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