Banke Bihari Singh @ Sonu Singh vs The State Of Bihar
2021 Latest Caselaw 6101 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.5632 of 2019
  Arising Out of PS. Case No.-195 Year-2017 Thana- UDWANTNAGAR District- Bhojpur
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Banke Bihari Singh @ Sonu Singh Son of Late Krishna Bihari Singh Resident of Village - Masarh, P.S.- Udwantnagar (Gajrajganj), Distt.- Bhojpur, Ara.

... ... Appellant/s

Versus

The State of Bihar

... ... Respondent/s

====================================================== Appearance :

For the Appellant/s     :       Mr. Vikram Deo Singh, Advocate
                                Mr. Sada Nand Roy, Advocate
For the Respondent/s    :       Mr. Zeyaul Hoda, SPP

====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 14-12-2021

The sole appellant is one of the accused of

Udwantnagar (Gajrajganj) P.S. Case No.195 of 2017. After

investigation the police sent up only the appellant for trial vide

Exhibit-8 and investigation against other co-accused was kept

pending. Accordingly, the appellant faced trial before the

learned 4th Additional Sessions Judge-cum-Special Judge Excise

Act, Bhojpur at Ara, in N.D.P.S. Case No.25 of 2017. By

judgment dated 25.11.2019 the learned trial Judge convicted the

appellant for offence under Sections 20(b)(ii)(c) of the N.D.P.S.

Act and by order of sentence dated 02.12.2019 ten years

rigorous imprisonment along with fine of rupees ten thousand Patna High Court CR. APP (SJ) No.5632 of 2019 dt.14-12-2021

was awarded. In default of payment of fine six months further

imprisonment was ordered. The trial Court judgment and order

are under challenge in this appeal.

2. The prosecution case as disclosed in the written

report of PW 6 Satyendra Kumar is that on 07.07.2017 at 6:15

AM, the informant was telephonically informed by Sub-

Divisional Police Officer, Ara (not examined during trial) that in

village Masarh, the house of the appellant is required to be

raided as it had been learnt that appellant is involved in business

of Ganja. The Sub-Divisional Police Officer informed that he

was also to accompany the team of the police officials.

Accordingly, a team to conduct raid was constituted of PW 6,

the Sub-Inspector of Police, Gajrajganj out post, along with

other Officer-in-Charges of different police stations named in

the FIR. Then the Block Development Officer, Udwantnagar

(PW 1) was also telephonically contacted to remain there at the

time of raid. The police team raided the house of the appellant

and from a room situated at south-western corner of the house

30 Kgs of Ganja was recovered from a box inside the bed.

Likewise, 25 Kgs of Ganja was recovered from a Bolero vehicle

parked near the house bearing registration No.BR3P 2190 and

electronic weighing machine was also recovered. The appellant Patna High Court CR. APP (SJ) No.5632 of 2019 dt.14-12-2021

was trying to flee away by jumping over on the roof of the

neighbour. However, the appellant was apprehended on the

spot. The appellant disclosed that his uncle Brij Kishore Singh

is also involved in the business of Ganja. Appellant had

purchased the Ganja from co-villager Rakesh Singh, which was

to be supplied to Dinesh Singh of village Balgojar and to

Jitendra Singh as well as to one Pakauri. The narcotic, a

Samsung Mobile, the Weighing Machine as well as the Bolero

vehicle were seized by the police and a seizure list was prepared

and a copy of the seizure-list is Exhibit-5.

3. During trial prosecution examined altogether

seven witnesses. PW 1 Md. Sikandar is the local BDO, who

was present at the time of search and seizure. The witness

besides supporting the factum of search and seizure has

identified his signature on the seizure-list. PW 2 Jyotish Paswan,

a Hawaldar of Police, PW 3 Suresh Prasad, a constable, PW 4

Sanjay Singh, a local Chaukidar, PW 5 Dina Nath Singh, a local

Chaukidar and PW 6 Satyendra Kumar, the informant of the

case, all claims to be eyewitnesses of the search and seizure.

PW 7 Shankar Pandit is Investigating Officer of the case.

4. Mr. Vikram Deo Singh, learned counsel for the

appellant, contends that there is complete lack of evidence that Patna High Court CR. APP (SJ) No.5632 of 2019 dt.14-12-2021

the informant or the Sub-Divisional Police Officer had complied

the requirement of Section 42 of the N.D.P.S. Act which

requires that the information gathered by the informant

regarding possibility of any narcotic or psychotropic substance

at any place to be reduced into writing and immediate

information of the same to the superior officer.

Learned counsel contends that there is complete

lack of evidence that the seized narcotics were sealed at the

place of recovery and the same was kept in a safe custody in the

police Malkhana etc. Further there is complete lack of evidence

that in whose presence or at what place or by what person the

samples of the seized narcotics were taken out. Narcotics were

seized from two places and only one sample was prepared.

Hence, it is difficult to ascertain that the sample was from which

of the seized substance. Moreover, PW 4 and PW 5, who are

not only local Chaukidars; rather seizure-list witnesses also have

clearly deposed that 55 Kgs of Ganja was recovered from the

vehicle. These witnesses are not hostile witnesses. They

contradicts the testimony of other witnesses that 30 Kgs Ganja

was recovered from inside the room and 25 Kgs from the

vehicle.

Learned counsel submits that it has come in Patna High Court CR. APP (SJ) No.5632 of 2019 dt.14-12-2021

evidence that the house is made of three floors and each floor is

occupied by the family members. The police is not specific that

all the three floors were in occupation of the appellant or the

appellant was in occupation of an individual floor and other

floors were in possession of the uncle of the appellant or other

brothers of the appellant. The Sub-Divisional Police Officer,

who had set the police in motion, was an important witness but

he has not turned up before the Court. All the aforesaid

infirmities create serious doubt on the trustworthiness of the

prosecution case.

Learned counsel submits that the appellant in his

statement under Section 313 Cr.P.C. has specifically stated that

he is sarpunch of the village and has been falsely implicated

because Darogaji (Sub-Inspector of Police) asked him to act as

informer of the police. The appellant refused; rather suggested

to get the information of any crime through the local Chaukidar.

The aforesaid refusal of the appellant led to the false implication

in this case.

5. Mr. Zeyaul Hoda, learned Additional Public

Prosecutor appearing for the State, contends that the appellant

was apprehended at the time of search and seizure of Ganja and

there is no evidence of enmity with the police. Therefore, for Patna High Court CR. APP (SJ) No.5632 of 2019 dt.14-12-2021

trivial infirmity or non-compliance, the prosecution case cannot

be disbelieved.

6. Article 21 of the Constitution of India guarantees

a right of fair trial to an accused. Fair trial includes fair

investigation. Onus lies on the prosecution to demonstrate that

the investigation was fair enough to not to cause any prejudice

to the accused.

7. In the case on hand; the following serious

infirmities are noteworthy in the prosecution case and evidence:

(a) This is a case of total non-compliance of

mandate of sub-section (1) and sub-section (2) of Section 42 of

the N.D.P.S. Act. In Karnail Singh V. State of Haryana

reported in (2009) 8 SCC 539, a constitution Bench of the

Hon'ble Supreme Court held that total non-compliance of the

requirement of Section 42 of the N.D.P.S. Act is impermissible;

rather would adversely affect the prosecution case. There is

nothing on the record to depict that the informant police officer

or the Sub-Divisional Police Officer who had communicated

about the chances of availability of Ganja with the appellant did

not reduce the information into writing and communicated to his

immediate superior officer. Such communication and writing

might have been in the physical form or electronic mode, but Patna High Court CR. APP (SJ) No.5632 of 2019 dt.14-12-2021

nothing was brought on the record nor any prosecution witness

has whispered about compliance of mandate of Section 42 of

the N.D.P.S. Act. This lapse, on the part of the prosecution,

alone is sufficient to disbelieve and discard the prosecution case.

(b) PW 4 Sanjay Singh, the local Chaukidar, and

PW 5 Dina Nath Singh, another Chaukidar, both of village

Masarh (P.O. village) have deposed that recovery of 55 Kgs of

Ganja was made from the Bolero vehicle of Banke Bihari Singh,

the appellant. He had signed on the blank papers at the police

station. These witnesses are not hostile witnesses. In Raja

Ram V. The State of Rajasthan reported in (2005) 5 SCC 272,

the Hon'ble Supreme Court said that if a witness is not declared

hostile by the prosecution, the defence can rely upon the

evidence of such witness and it would be binding on the

prosecution.

The testimony of these witnesses contradicts the

statement of other witnesses in material particular to the extent

that the alleged recovery was partially made from inside the

house and partially from the Bolero vehicle, as claimed in the

First Information Report. The said vehicle was of the appellant

has not been established by the prosecution evidence. The

aforesaid infirmity creates serious doubt on the factum of search Patna High Court CR. APP (SJ) No.5632 of 2019 dt.14-12-2021

and seizure.

(c) There is complete lack of evidence as to

whether the seized substances were sealed at all muchless in

presence of responsible person. The local Block Development

Officer, who acted as a Magistrate, at the time of so-called

search and seizure, has not deposed anything about sealing of

seized substances. Moreover, there is no evidence as to who and

when took out samples from how many packets of seized

substances. The seizure was made on 07.07.2017. The order of

the Court was obtained for sending the sample to Forensic

Science Laboratory on 24.07.2017. The substance was sent on

10.08.2017 to Forensic Science Laboratory, Kolkata, where it

was received on 23.08.2017. But there is complete lack of

evidence that where the seized substances were kept in custody

and in whose custody they were kept. Who took out the sample

and in whose presence it was done. The aforesaid infirmity

creates serious doubt on the sanctity of the sample which was

sent to the Forensic Science Laboratory for scientific

examination.

8. For the aforesaid infirmities, which was not

considered by the learned trial Judge, the prosecution case is

bound to fail. Hence, the conviction of the appellant is not Patna High Court CR. APP (SJ) No.5632 of 2019 dt.14-12-2021

sustainable on the facts and in law. Accordingly, the impugned

judgment of conviction and order of sentence are hereby set

aside and this appeal is allowed.

Let the appellant be set free at once.

(Birendra Kumar, J) Mkr./-

AFR/NAFR                N.A.F.R.
CAV DATE                08.12.2021
Uploading Date          14.12.2021
Transmission Date       14.12.2021