Jharkhand High Court
Against The Judgment Of Conviction ... vs The State Of Jharkhand on 23 January, 2025
Author: Ananda Sen
Bench: Ananda Sen
CRIMINAL APPEAL (SJ) NO. 431 OF 2002
WITH
CRIMINAL APPEAL (SJ) NO. 1112 OF 2010
[AGAINST THE JUDGMENT OF CONVICTION DATED
14.06.2002 AND ORDER OF SENTENCE DATED
15.06.2002 PASSED BY THE ADDITIONAL SESSIONS
JUDGE-II, BOKARO IN RESPECT OF APPELLANT IN
CR. APPEAL (SJ) NO. 431 OF 2002 AND JUDGEMENT
OF CONVICTION DATED 12.08.2009 AND ORDER OF
SENTENCE DATED 13.08.2009 PASSED BY THE
ADDITIONAL SESSIONS JUDGE-I, BOKARO IN
RESPECT OF APPELLANT IN CR. APPEAL (SJ)
NO.1112 OF 2010)]
----
Krishna Rai son of late Sushil Rai, resident of Dundibag, P.S. B.S.
City, District- Bokaro.
... Appellant [In Cr. A.(SJ) 431 of 2002]
Nidhan Singh S/o late Ram Krishna Singh, Resident of village-
Pakhorapur P.S.-Barharwa, District-Aara, Bihar
... Appellant [In Cr. A. (SJ) 1112 of 2010]
Versus
The State of Jharkhand ... Respondent [in both the appeals]
----
For the Appellants: Mr. S.Thakur, Advocate.
For the State : Ms. Ruby Pandey, A.P.P.
----
PRESENT
SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
JUDGMENT
RESERVED ON 28.11.2024 PRONOUNCED ON 23.01.2025
Per Ananda Sen, J. These criminal appeals are directed Against the Judgment of
conviction dated 14.06.2002 and order of sentence dated 15.06.2002
passed by Additional Sessions Judge-II, Bokaro in GR No.262 of 1994 in
respect of Appellant in Cr.A.(SJ) 431 of 2002 and judgment of conviction
dated 12.08.2009 and order of sentence dated 13.08.2009 passed by the
learned Addl. Sessions Judge-I, Bokaro in G.R. No.262 of 1994 (Suppl) in
respect of appellant in Cr. A.(SJ) No.1112 of 2010 whereby and whereunder,
both the appellants having been found guilty of charge under Section 21 of
the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short
NDPS) have been sentenced to undergo rigorous imprisonment of 10 years
Cr. Appeal (S.J.) No. 431 of 2002
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Cr. Appeal (S.J.) No. 1112 of 2010
and to pay a fine of Rs.1,00,000/- and in default of payment of fine, the
appellants have to undergo further rigorous imprisonment of two years.
2. Learned counsel for the appellant submitted that the judgments
and orders of sentence passed by the learned Trial Court are bad in law and
are based upon surmises and conjectures. There was no independent
witness at the time of search, nor the search was conducted in the presence
of any Gazetted officer or the Executive Magistrate and the same was done
in violation of Section 50 of the Narcotic Drugs and Psychotropic Substances
Act. Neither the Investigating Officer nor any official of the raiding party were
authorised to search and seize, therefore, the same is in violation of
Sections 41, 42, 43, 55, and 57 of the Narcotic Drugs and Psychotropic
Substances Act. He argued that the seized materials were not weighed
before sending them to Malkhana. As per him, appellant Nidhan Singh has
been convicted merely on the basis of facts and circumstances of an earlier
case. He lastly submitted that the entire process of investigation, search and
seizure was in violation of the provisions of the Narcotic Drugs and
Psychotropic Substances Act which caused prejudice to the appellants.
Thus, he prays for the acquittal of the appellants.
3. Counsel for the State defended the judgment of the learned Trial
Court and submitted that there is no procedural irregularity committed by the
persons who conducted the search and seizure of this case. In NDPS cases
there is presumption against the accused of committing the offence and it is
the accused who has to prove the contrary. In this case the prosecution was
fully able to prove its case beyond shadow of reasonable doubt, thus, these
appeals need to be dismissed.
4. The prosecution case is at the instance of the Informant R.C.
Ram who was the inspector incharge of the B.S City Police Station. He in his
written statement has stated that on 28.02.1994 at about 2.00 P.M he got
information that an illegal business of Brown Sugar is operating in the Khatal
of Krishna Rai which is situated at Dudibagh. He formed a raiding party
consisting of S.N Chaudhary, Officer-in-Charge, Sector-IV Police Station,
Shailendra Kumar Singh who was Incharge of Sector-VI Police Station and
Sub Inspector Phooldeo Singh amongst others and raided the said place at
about 2.30 P.M. When the police party raided the place, appellant Nidhan
Singh tried to flee from the spot and on being chased he was caught by the
Cr. Appeal (S.J.) No. 431 of 2002
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Cr. Appeal (S.J.) No. 1112 of 2010
team and when he was searched sixteen packets of brown sugar was
recovered from his right pocket. On further search of Khatal six more
packets were found but Krishna Rai was not present there. He further stated
that the seizure list was prepared in the presence of two independent
witnesses namely Triveni Singh and Pradeep Rai. He further stated that
appellant Nidhan Singh could not satisfactorily explain as to how he got the
brown sugar and therefore he was arrested. He further stated that appellant
Nidhan, on query, admitted that he along with Krishna Rai was involved in
the business of selling brown sugar. He stated that the appellant Nidhan
Singh also admitted that he got the brown sugar from Baij Nath Prasad, who
is a whole seller and a constable of Excise Department from Bhojpur colony.
On the basis of the written report, B.S. City Police Station Case
No: 84 of 1994 was registered under Sections 21/22/25 of the NDPS Act.
After investigation, the police submitted chargesheet against both the
appellants. Accordingly, cognizance of the offence was taken by the Court of
Sessions where charge was framed under Section 21 of the NDPS, Act and
trial proceeded.
5. During the course of trial appellant Nidhan Singh did not appear
on and from 12.01.2000 due to which, trial in respect of him was separated
from that of Krishna Rai on 21.12.2000. Before that two witnesses namely
Shailendra Kumar Singh and Phooldeo singh were already examined by the
prosecution on 27.08.1996 and 15.09.1997 respectively. After separation of
the trial, in Krishna Rai's trial one more witness was examined namely Gopal
Jee Jha as P.W.3.
6. Appellant Nidhan Singh was arrested and was produced in
Court on 18.02.2009, whereafter, in supplementary record in Sessions Trial
No.262 of 1994(S) one witness, namely, Kirti Mahto was examined in the
Case of Nidhan Singh as P.W.3.
7. Several documents were also exhibited, which are as follows:-
Ext.1-Written Report
Ext.2- Formal FIR
Ext.3-Seizure List
Ext.4&4/1-Signature on the Seizure List
Ext.5- Carbon Copy of F.S.L report
8. For proper disposal of both these criminal appeal, I am dealing
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Cr. Appeal (S.J.) No. 1112 of 2010
with the prosecution witnesses hereinafter:-
P.W.1, Shailendra Kumar Singh, has stated that on the date of
occurrence he was the incharge of Sector-VI police station. He got a secret
information that business of brown sugar is going on in Sector-IV. He further
stated that he had formed a raiding party and raided the khatal of Krishna
Rai. He stated that from there they apprehended Nidhan Singh, who was
found in possession of sixteen packets of brown sugar and 6 packets of
brown sugar were also found hidden in matchbox. He said that seizure list
was prepared there. In his cross examination he stated that the witnesses to
the seizure list were not the members of the raiding party.
P.W.2, Phooldeo Singh, stated that on 28.02.1994, he went to
khatal as a member of raiding party along with informant (R.C. Ram),
inspector Shailendra Kumar Singh, constable Baidnath Prasad, constable
Birendra Kumar Tiwari among others. He stated that when they raided, a
person tried to escape and he was caught on being chased. On
interrogation, the person disclosed his name as Nidhan Singh. He further
stated that during raid two independent witnesses namely Triveni Singh and
Praveen Rai came there and the appellant Nidhan Singh was searched in
front of them who was found possessing 16 packets of brown sugar in his
pocket and on further search of khatal, 6 packets of brown sugar were also
found hidden in matchbox. He stated that Nidhan Singh admitted that he
was involved in selling of brown sugar along with Krishna Rai. He identified
the formal FIR (Ext.2). He stated that seizure list was prepared there and
signed by independent witnesses (Ext.4 & 4/1).
In his cross examination he stated that he was not authorised to
investigate under the NDPS Act. He also admitted that he did not inform any
gazetted officer before search. He did not weigh the material seized. He
stated that khatal was open from all four sides.
P.W.3, Gopaljee Jha (examined as witness in the Trial in respect
of appellant Krishna Rai) was Assistant Scientist of Forensic Science
Laboratory, Ranchi. He in his statement stated that he received two packets
from P.S.- B.S City for forensic examination. He further stated that on
examination, the packets were found to be of "heroin". He identified the
signature of Yaswant Poddar in the FSL Report which was marked as exhibit
-5 in the Trial in respect of appellant Krishna Rai.
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Cr. Appeal (S.J.) No. 1112 of 2010
PW-3, Kirti Mahto (examined as witness in the Trial in respect of
appellant Nidhan Singh) identified the signature of Yaswant Poddar in the
FSL Report which was marked as exhibit -5 in the Trial in respect of
appellant Nidhan Singh.
9. After closure of the prosecution evidence, appellants were
examined in terms of Section 313 of the Code of Criminal Procedure,
wherein they pleaded innocence. Appellants did not adduce any evidence in
defence.
10. The Trial Court, after hearing the arguments and appreciating
the evidences on record, by the Judgment of conviction dated 14.06.2002
and order of sentence dated 15.06.2002 passed by Additional Sessions
Judge-II, Bokaro in GR No.262 of 1994 in respect of Appellant in Cr.A.(SJ)
431 of 2002 and judgment of conviction dated 12.08.2009 and order of
sentence dated 13.08.2009 passed in G.R. No.262 of 1994 (Suppl) in
respect of appellant in Cr.A.(SJ)1112 of 2010) convicted and sentenced the
appellants for offences under Section 21 of the Narcotics Drugs and
Psychotropic Substances Act, 1985 in the manner as stated in paragraph 1
hereinbefore.
11. From the evidence led by the prosecution, we find that the
mandatory provisions of the Narcotic Drugs and Psychotropic Substances
Act have not been followed. There was no sampling done nor the alleged
contraband materials were sealed. There are serious lacunas in conducting
search and seizure. Even the samples of seized contraband materials were
not sealed in presence of the Magistrate nor the inventory was duly certified
by the Magistrate.
12. The Hon'ble Supreme Court in the case of Yusuf @ Asif
versus State reported in (2023) SCC OnLine SC 1328 at paragraphs 15, 16
and 17 thereof, while referring to the judgment in the case of Union of India
versus Mohanlal [(2016) 3 SCC 379] has held as under: -
"15. In Mohanlal's case, the apex court while dealing with
Section 52A of the NDPS Act clearly laid down that it is
manifest from the said provision that upon seizure of the
contraband, it has to be forwarded either to the officer-in-
charge of the nearest police station or to the officer
empowered under Section 53 who is obliged to prepare an
inventory of the seized contraband and then to make an
application to the Magistrate for the purposes of getting its
correctness certified. It has been further laid down that the
samples drawn in the presence of the Magistrate and the list
thereof on being certified alone would constitute primary
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Cr. Appeal (S.J.) No. 1112 of 2010
evidence for the purposes of the trial.
16. In the absence of any material on record to establish that
the samples of the seized contraband were drawn in the
presence of the Magistrate and that the inventory of the seized
contraband was duly certified by the Magistrate, it is apparent
that the said seized contraband and the samples drawn
therefrom would not be a valid piece of primary evidence in
the trial. Once there is no primary evidence available, the trial
as a whole stands vitiated.
17. Accordingly, we are of the opinion that the failure of the
concerned authorities to lead primary evidence vitiates the
conviction and as such in our opinion, the conviction of the
appellant deserves to be set aside. The impugned judgment
and order of the High Court as well as the trial court
convicting the appellant and sentencing him to rigorous
imprisonment of 10 years with fine of Rs.1 lakh and in default
of payment of fine to undergo further imprisonment of one
year is hereby set aside."
13. In this case also, no sampling, admittedly was done in presence
of the Magistrate nor there was any inventory or certification. Thus, the
entire trial is vitiated. Considering the overall materials and evidence
available on record, we, are inclined to allow this appeal. Accordingly, the
Judgment of Conviction dated 14.06.2002 and Order of Sentence dated
15.06.2002 passed by the Additional Sessions Judge-II, Bokaro in GR
No.262 of 1994 in respect of Appellant in Cr. Appeal(SJ) 431 of 2002 and
Judgment of Conviction dated 12.08.2009 and Order of Sentence dated
13.08.2009 passed by the learned Additional Sessions Judge-I, Bokaro in
G.R. No.262 of 1994 (Suppl) in respect of appellant in Cr. Appeal (SJ)
No.1112 of 2010 are hereby set aside. As the appellants are already on bail,
they are discharged from the liabilities of their bail bonds so are the bailers.
14. Both these criminal appeals are, accordingly, allowed. Pending
interlocutory applications, if any, stand disposed of.
15. Let the Trial Court Records be sent back to the Court concerned
forthwith, along with a copy of this judgment.
(ANANDA SEN, J.)
Per Gautam Kumar Choudhary, J.
I agree.
(GAUTAM KUMAR CHOUDHARY, J.)
High Court of Jharkhand, Ranchi.
Dated: the 23 rd January, 2025.
NAFR/Kumar/Cp-03
Cr. Appeal (S.J.) No. 431 of 2002
With
Cr. Appeal (S.J.) No. 1112 of 2010
