Sanjay Kamkar @ Sanjay Kumar vs The State Of Bihar
2021 Latest Caselaw 759 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (SJ) No.1479 of 2019
     Arising Out of PS. Case No.-76 Year-2014 Thana- BRAHMPUR District- Buxar
======================================================

Sanjay Kamkar @ Sanjay Kumar, Son of Sri Vishwanath Kamkar, Resident of Village and Post - Nimej, P.S.- Brahampur, Distt - Buxar.

... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Sada Nand Roy, Advocate. For the Respondent/s : Mr. Zeyaul Hoda, APP.

====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V JUDGMENT Date : 09-02-2021 The sole appellant Sanjay Kamkar @ Sanjay

Kumar faced trial along with co-convict Ganesh Prasad in

N.D.P.S. Case No. 04 of 2014 arising out of Brahmpur P.S. Case

No. 76 of 2014. The appellant above named was found guilty

for offences under Section 20(b)(ii)(C) and under Section 27 (A)

of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The learned trial Judge awarded 10 years rigorous imprisonment

along with fine of Rs. 1 lac under both the heads aforesaid and

in default of payment of fine simple imprisonment of three

months was awarded. The sentences were ordered to run

concurrently. The Judgment of conviction and order of sentence

dated 22.02.2019 is under challenge in this appeal.

2. The prosecution case as disclosed in self

statement of Mr. Sarvesh Kumar Singh (PW-11), the Inspector Patna High Court CR. APP (SJ) No.1479 of 2019 dt. 09-02-2021

of Police (Brahmpur Police Station) is that on 27.03.2014 at

about 09:15 A.M., confidential information was received that

the appellant, resident of village - Nimej under the same police

station is engaged in purchase and sale of ganja (opium) and is

hiding ganja in his house. The informant lodged station diary

entry no. 688 of 2014 and as per direction of his senior Police

Officer took the services of the Circle Officer, Brahampur in the

capacity of a Magistrate and proceeded along with other police

personnel for village - Nimej. Local chaukidar Rajendra

Paswan (PW-4) also accompanied with the informant and police

party. They reached at the house of the appellant at 10:15 A.M.

The house of the appellant was seized by the police personnel.

The villagers assembled there and in presence of two witnesses

Babloo Ojha (PW-1) and Ashok Yadav (PW-2), the appellant

who was found there disclosed his name. Two others found

there were Shatrughan Kumar and co-convict Ganesh Prasad.

The appellant was informed that the police has to search the

house as the police has information that ganja is kept there. The

appellant was also informed about his right to be searched in

presence of the Magistrate as contemplated under Section 50 of

the Act. Thereafter, in presence of Mr. Shushil Kumar

Upadhyay, the Circle Officer and the two independent Patna High Court CR. APP (SJ) No.1479 of 2019 dt. 09-02-2021

witnesses, the person of the three accused named above was

searched. From possession of the appellant, a mobile phone was

recovered, from possession of co-convict Ganesh Prasad, a

mobile phone and 100 grams of ganja was recovered and from

possession of co-accused Shatrughan (who was found juvenile

and his matter was sent to the Juvenile Justice Board), a mobile

and 100 grams of ganja was recovered. Besides aforesaid, from

the house of the appellant, 29.500 Kg of ganja was recovered.

Samples from all the packets of recovery was taken out and

sealed in three envelops. Thereafter, the seized narcotics were

also sealed. The witnesses above named and the available

Magistrate signed on the seized articles and sample packets.

Since the appellant had no valid license for keeping ganja in

commercial quantity, the appellant and others were booked in

the case.

3. After investigation, the police submitted

chargesheet and accordingly the appellant faced trial along with

co-convict Ganesh Prasad for the offences stated above and

were found guilty.

4. Learned counsel for the appellant contends that

the seizure list witnesses and independent witnesses i.e. PW-1

Babloo Ojha, PW-2 Ashok Yadav and PW-3 Basant Jaiswal Patna High Court CR. APP (SJ) No.1479 of 2019 dt. 09-02-2021

have not supported the prosecution case. The prosecution has

failed to establish that the place of recovery belongs to the

appellant and in absence of any evidence that the appellant is

owner of the place of recovery, it cannot be alleged that the

recovered narcotic was of the appellant. Reliance has been

placed on the judgment of the Hon'ble Supreme Court in Mohd.

Alam Khan V. Narcotics Control Bureau and Another

reported in 1996 CRI. L. J. 2001. Learned counsel for the

appellant next contends that there is complete non-compliance

of the requirement of Section 42(1) and 42(2) of the N.D.P.S.

Act. Nothing has been brought on the record to substantiate that

the informant got the confidential information and took down it

in writing and the writing was communicated to the immediate

superior officer. Learned counsel contends that in the case of

Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC

539, the Constitution Bench of the Hon'ble Supreme Court held

that whether there is adequate or substantial compliance with

Section 42 or not is a question of fact to be decided in each case.

While total non-compliance with the requirement of Sections

42(1) and 42(2) is impermissible, the delayed compliance with

satisfactory explanation about the delay will be acceptable

compliance with Section 42.

Patna High Court CR. APP (SJ) No.1479 of 2019 dt. 09-02-2021

In the present case, there is no evidence on the

record that the requirement of Section 42 of the Act was

complied.

Learned counsel would submit that the informant

of the case is Investigating Officer and on closure scrutiny of the

evidence of the informant (PW-11) and lapses committed during

investigation would make it abundantly clear that chances of

bias on the part of the Investigating Officer cannot be

completely ruled out. According to learned counsel, for the

aforesaid infirmity, the conviction of the appellant is vitiated in

law as the prosecution case leaves abundance of doubts.

5. Learned counsel for the respondent submits that

the evidence on the record would reveal that there is substantial

compliance of the mandate of law. The seized narcotic was

found as ganja containing Tetra Hydro Cannabinol as their chief

intoxicating ingredient vide FSL report at Exhibit-9. He further

contends that the seizure list witnesses have admitted their

signature on search cum seizure list vide Annexure-6, on notice

under Section 50 of the Act vide annexure-7 and on sampling of

the seized narcotics vide annexure-8. Besides the aforesaid,

other police personnel namely PW-5 Shubhash Chandra Prasad,

PW-6 Arbind Kumar, PW-7 Shashikant Kumar, PW-8 Vinod Patna High Court CR. APP (SJ) No.1479 of 2019 dt. 09-02-2021

Prasad, PW-9 Sanjeet Yadav and PW-10 Devshanker Kumar

have supported the prosecution case that they were also

members of the raiding party and from the house of the

appellant, ganja was seized by the officials accompanying them.

The seized articles was sampled there at for forensic

examination and thereafter sample and other items were sealed

in presence of the Magistrate. No bias has been shown to be

there with the aforesaid witnesses against the appellant. Hence,

for some minor technical flaws, the trustworthy prosecution

evidence cannot be thrown away.

6. PW-1 Babloo Ojha has stated in his evidence

that house of the appellant was not searched in his presence. He

was called at the police station and asked to sign on the plain

papers. The sample of the seized article was also not prepared in

his presence. He had made protest that he would not sign on

blank papers, but threatened to be sent to jail. The witness

clearly stated that he had no personal knowledge of the case.

PW-2 Ashok Yadav also stated that house of the appellant was

not searched in his presence nor anything was recovered in his

presence. At the police station, he was asked to sign on plain

papers. PW-3 Basant Jaiswal deposed that no ganja was seized

in his presence from the house of the appellant nor any sampling Patna High Court CR. APP (SJ) No.1479 of 2019 dt. 09-02-2021

was made in his presence rather he had put his signature on the

blank papers. These witnesses are not hostile witnesses.

7. In Raja Ram V. The State of Rajasthan

reported in (2005) 5 SCC 272, the Hon'ble Supreme Court held

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.

8. The aforesaid view was reiterated in Mukhtiar

Ahmed Ansari V. The State (NCT of Delhi) reported in

(2005) 5 SCC 258. Paragraphs 29 to 31 of the judgment are

being reproduced below:

"29. The learned counsel for

the appellant also urged that it was the case

of the prosecution that the police had

requisitioned a Maruti car from Ved Prakash

Goel. Ved Prakash Goel had been examined

as a prosecution witness in this case as PW

1. He, however, did not support the

prosecution. The prosecution never declared

PW 1 "hostile". His evidence did not

support the prosecution. Instead, it

supported the defence. The accused hence Patna High Court CR. APP (SJ) No.1479 of 2019 dt. 09-02-2021

can rely on that evidence.

30. A similar question came up

for consideration before this Court in Raja

Ram V. State of Rajasthan (supra). In that

case, the evidence of the doctor who was

examined as a prosecution witness showed

that the deceased was being told by one K

that she should implicate the accused or else

she might have to face prosecution. The

doctor was not declared "hostile". The

High Court, however, convicted the accused.

This Court held that it was open to the

defence to rely on the evidence of the doctor

and it was binding on the prosecution.

31. In the present case, evidence

of PW 1 Ved Prakash Goel destroyed the

genesis of the prosecution that he had given

his Maruti car to the police in which the

police had gone to Bahai Temple and

apprehended the accused. When Goel did

not support that case, the accused can rely

on that evidence."

Patna High Court CR. APP (SJ) No.1479 of 2019 dt. 09-02-2021

9. Besides non-support of the prosecution case by

the aforesaid prosecution witnesses, non-examination of the

Anchaladhikari who was accompanying the police team as

Magistrate seriously tells upon the prosecution case as the

foundation of the case has not been proved and substantiated

beyond reasonable doubt. The claim of the informant that he

searched the house of the appellant and recovered ganja as well

as his claim that he sampled and sealed the same finds

confrontation from the testimony of the prosecution witnesses

no. 1, 2 and 3. Thus the whole prosecution case is fit to be

disbelieved on the aforesaid score only.

10. PW-11, the informant cum Investigating

Officer, in para-12 stated that he has not mentioned who

disclosed about the identity of the house of the appellant. He

further stated that he along with the Circle Officer and two

independent witnesses had entered into the house of the

appellant and the rest remained outside. In Para-16, the witness

stated that how many members are there in the family of the

appellant is not mentioned nor any document of the ownership

of the house was seen by him.

11. PW-9 Constable Sanjeet Yadav stated that the

Chaukidar (PW-4) had identified the house of the appellant. Patna High Court CR. APP (SJ) No.1479 of 2019 dt. 09-02-2021

PW-4 Chaukidar Rajendra Prasad stated that he had heard that

ganja was recovered from the house of the appellant. Though

PW-4 has been declared hostile by the prosecution and he has

been confronted to his statement before the police, but the

attention of PW-11, the Investigating Officer was not drawn by

the prosecution to the aforesaid contradiction. Therefore, there

is no value in the eyes of law of the hostility of this witness.

However one thing is clear that PW-4 does not support the claim

of PW-9 that this PW-4 had identified the house of the appellant

to the police. The informant said that the appellant also

disclosed that the house belongs to the appellant. Admission of

accused during the course of his interrogation cannot be made

admissible in evidence. There is no other evidence on the

identification of the place of search.

12. In Md. Alam Khan (Supra), the same issue

was considered and the Hon'ble Supreme Court held in Para-10

as under:-

".......... As pointed

out earlier that nobody has identified

the flat in question as belonging to the

appellant and in the absence of

corroborating evidence, one cannot Patna High Court CR. APP (SJ) No.1479 of 2019 dt. 09-02-2021

come to a confirmed conclusion

regarding ownership and possession on

the basis of the retracted statement of

the appellant alone".

Consequently conviction of the appellant was

set aside.

13. On consideration of the evidence on the record,

I am of the view that the prosecution has failed to establish that

the place of seizure was of the appellant, especially when the

defence witnesses stated that the appellant was arrested from his

"Shubham Fancy Dresses" shop at Brahmpur and not from the

place as alleged by the prosecution.

14. In Karnail Singh Vs. The State of Haryana

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

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

requirement of sub-sections 1 and 2 of Section 42 of the

N.D.P.S. Act is impermissible. The non-compliance would

adversely affect the prosecution case.

There is nothing on the record brought during the

course of trial that the informant police officer got the

confidential information received by him reduced into writing

and communicated it to his immediate official superior. Such Patna High Court CR. APP (SJ) No.1479 of 2019 dt. 09-02-2021

writing might have been in physical form or electronic mode,

but nothing was brought on the record that the mandates of

Section 42 of the NDPS Act was complied. For this reason also,

the charge against the appellant cannot be treated as proved.

15. Fair trial is a constitutional guarantee to an

accused under Article 21. 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 parties, especially the accused.

In this case the informant police officer is

investigating officer of the case. The chances of tacit bias in

getting the desired result of his own complaint cannot be ruled

out. Further if the complainant is himself investigating officer,

the accused as well as the prosecution are deprived of their

valuable right of contradicting and corroborating with the

previous statement of the informant recorded under Section 154

Cr.P.C. or of the witnesses recorded under Section 161 Cr.P.C.

as enjoined in Sections 145 and 157 of the Evidence Act.

In the instant case, the informant / investigating

officer did not comply the mandate of Section 42 of the NDPS

Act. The investigating officer failed to ascertain and prove that

the place of recovery was the house of the appellant and of none Patna High Court CR. APP (SJ) No.1479 of 2019 dt. 09-02-2021

else.

16. The entire investigation process was almost

complete on the same day when search, seizure and sampling

was made i.e. on the date of occurrence dated 27.03.2014 itself.

Therefore, there was no reason for delayed prayer to the court

on 05.05.2014 to send the sample for forensic examination.

Even after grant of the permission on the date of prayer itself i.e.

05.05.2014, there was no reason as to why the samples were

sent on 22.05.2014 to the forensic science laboratory. The delay

of everyday diminishes the quality of the seized narcotics and

chances of fair report gets mitigated.

The investigating officer (PW-11) did not

substantiate as to where the seized ganja was kept at the police

station. During cross-examination, he admitted that he had not

mentioned so in the case diary as to where it was kept. The

Malkhana register was not produced to the court to ensure that

on the date of seizure the seized articles were kept in the

custody of some person other than the informant nor any

incharge of police Malkhana was examined to substantiate the

aforesaid fact. In the aforesaid situation, the chances of

tampering of the seized material by the investigating officer

cannot be ruled out.

Patna High Court CR. APP (SJ) No.1479 of 2019 dt. 09-02-2021

For the aforesaid lapses, it is evident that there was

no fair investigation of the case as the informant was himself an

investigating officer.

17. Conviction of the appellant under Section 27A

of the NDPS Act is otherwise also bad in law because it is not

the prosecution case or evidence that the appellant was indulged

in financing any of the activities mentioned in sub clause (i) to

(v) of Clause (viiia) of Section 2 of the Act nor there is any

evidence that the appellant was indulged in harbouring any

person engaged in the aforementioned activities.

18. To conclude, the prosecution case suffers from

the following infirmities:

(a) The claim of the informant that he

made search and seizure and recovery of ganja

from the house of the appellant is not

corroborated by any reliable evidence rather it is

confronted by the prosecution evidence of PW-1

to PW-3. Non-examination of the Magistrate as

prosecution witness in whose presence so called

search and seizure was made adds to the

aforesaid infirmity to disbelieve the whole

prosecution case.

Patna High Court CR. APP (SJ) No.1479 of 2019 dt. 09-02-2021

(b) The prosecution case completely

fails due to lack of evidence of compliance of

the mandate of Section 42 of the N.D.P.S. Act.

(c) The biased investigation made

by the informant of the case as noticed above is

additional infirmity in the prosecution case.

19. In the result, it appears that the prosecution has

failed to prove the charges against the appellant. The learned

trial Judge has not considered the aforesaid infirmities while

recording the judgment of conviction.

20. Accordingly, the impugned judgment and order

is hereby set aside and this appeal is allowed.

21. The appellant is in jail. Let him be set free at

once.

(Birendra Kumar, J)

mantreshwar/-

AFR/NAFR                A.F.R.
CAV DATE                04.02.2021
Uploading Date          09.02.2021
Transmission Date       09.02.2021