Noor Alam @ Jhunna vs The State Of Bihar
2021 Latest Caselaw 1246 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (SJ) No.993 of 2018
  Arising Out of PS. Case No.-315 Year-2015 Thana- BAIRIYA District- West Champaran
======================================================

Noor Alam @ Jhunna, S/o Shekh Ekawal, Resident of Village Telua Shekh Toli, P.S. - Nautan, Dist. West Champaran ... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== with CRIMINAL APPEAL (SJ) No. 758 of 2018 Arising Out of PS. Case No.-315 Year-2015 Thana- BAIRIYA District- West Champaran ====================================================== Afroz Alam, S/o Sk. Ayub, R/o Village - Haripakri, Sheikh Toli, P.S. - Nautan, District - West Champaran.

... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== with CRIMINAL APPEAL (SJ) No. 888 of 2018 Arising Out of PS. Case No.-315 Year-2015 Thana- BAIRIYA District- West Champaran ====================================================== Sabhapati Ram, S/o Ram Ekbal Ram, R/o Village - Dhanauti, P.S. - N.H. Nagar Hasanpura, Distt. - Siwan.

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

(In CRIMINAL APPEAL (SJ) No. 993 of 2018) For the Appellant/s : Mr. Umesh Chandra Verma, Advocate For the Respondent/s : Mr. Shyed Ashfaque Ahmad, A.P.P. (In CRIMINAL APPEAL (SJ) No. 758 of 2018) For the Appellant/s : Mr. Anant Kumar Mishra, Advocate For the Respondent/s : Mr. Sujit Kumar Singh, A.P.P. (In CRIMINAL APPEAL (SJ) No. 888 of 2018) For the Appellant/s : Ms. Mira Kumari, Advocate For the Respondent/s : Mr. Zeyaul Hoda, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date : 08-03-2021

All the above named appellants faced trail in Trial

No. 10 of 2016 arising out of Bairiya P.S. Case No. 315 of 2015 Patna High Court CR. APP (SJ) No.993 of 2018 dt.08-03-2021

for offences under Sections 489-A/34, 489-C/34 of the Indian

Penal Code and for offences under Sections 20(ii)(c) and 22(c)

of the Narcotic Drugs and Psychotropic Substances Act, 1985

(hereinafter referred to as the "NDPS Act"), before the learned

Additional Sessions Judge-V, Bettiah. By the impugned

judgment and order dated 06.02.2018, the appellants were found

guilty for offences under Sections 489-C/34 of the Indian Penal

Code and sentenced to undergo rigorous imprisonment for five

years. They were found guilty for offences under Section 20(ii)

(c) and 22(c) of the NDPS Act and sentenced to undergo

rigorous imprisonment for ten years and to pay a fine of rupees

one lakh under each of the aforesaid head of the NDPS offences.

The sentences have been ordered to run concurrently and in

default of payment of fine, the appellants have been ordered to

undergo rigorous imprisonment for one year.

2. The prosecution case as disclosed in the self

statement of Sub-Inspector Sanjay Kumar of Bairiya Police

Station (P.W. 1) is that on 19.12.2015 in the early morning the

In-Charge of Technical Cell of S.P. Office, Bettiah, namely,

Sunil Kumar (P.W. 2) along with Constable Munna Kumar Sah

(P.W. 3) came at Bairiya police station and reported that

counterfeit Indian currency and narcotic material are being

carried by veteran smuggler Noor Alam @ Jhunna along with Patna High Court CR. APP (SJ) No.993 of 2018 dt.08-03-2021

his associates and they were moving towards Tilangahi. The

informant, for deputation of a Magistrate tried to contact the

Circle Officer, Bairiya and the Sub-Divisional Officer, Bettiah

on mobile. Since it was 04:00 a.m. no one received the phone

and due to paucity of time, the informant along with armed

forces and the aforesaid two persons proceeded towards Bagahi

Nath Baba Chowk and put an ambush thereat. At about 05.15

a.m., two motorcycles were stopped. On one motorcycle,

appellant Noor Alam @ Jhunna and appellant Afroz Alam were

sitting and on another motorcycle, appellant Sabhapati Ram was

there. The appellants disclosed their names to the police. The

informant asked them whether they want to be searched in

presence of a Magistrate then the three appellants agreed for

search by the police. Thereafter, in presence of Abhay Kumar

(not examined) and Amit Kumar (not examined) of village

Chuhiharwa, the person of appellant Noor Alam @ Jhunna was

searched and from his pocket twenty pieces of Indian currency

notes of one thousand denomination were recovered which were

counterfeit once and from the dicky of the motorcycle four Kg.

of charas like substance was recovered. From beneath the seat

of the motorcycle of Sabhapati Ram, half Kg. of charas was

recovered. The appellants did not produce any paper, hence, the

appellants were arrested.

Patna High Court CR. APP (SJ) No.993 of 2018 dt.08-03-2021

3. After investigation, the police submitted charge-

sheet and during trial, prosecution examined altogether four

witnesses. P.W. 4 Birendra Kumar Singh is the Investigating

Officer of the case.

4. Mr. Umesh Chandra Verma, learned counsel for

the appellants contends that several infirmities are there in the

prosecution evidence and the learned Trial Judge has recorded

the conviction ignoring the same. According to learned counsel,

there is total non-compliance of the mandate of Section 50 of

the NDPS Act. No independence witness or seizure list witness

were examined by the prosecution to corroborate and ensure

trustworthiness of the prosecution case and evidences. There is

lack of evidence that the seized substance was even suspected

as a narcotic material at the time of recovery nor there is any

evidence that in whose presence, the samples were taken out

and in whose custody, the seized narcotics were kept to inspire

confidence regarding non-tampering with the same. Learned

counsels for other appellants submits that nothing incriminating

was recovered from possession of appellants Afroz Alam or

Sabhapati Ram nor there is any evidence of prior meeting of

mind.

5. Learned Additional Public Prosecutor for the

State contends that this is not a case of total non-compliance of Patna High Court CR. APP (SJ) No.993 of 2018 dt.08-03-2021

the mandates of NDPS Act and the law is well settled that even

substantial compliance would suffice if the prosecution case is

otherwise believable. Learned counsel contends that plurality of

the witnesses is not requirement of the law, rather

trustworthiness of the witnesses is to be tested and there is

nothing to doubt the veracity of the prosecution witnesses in

absence of any inkling of motive for false implication.

6. The law is well settled that whether there is

adequate and substantial compliance with requirement of

Section 50 of the NDPS Act or not is a question of fact to be

decided in each case. While total non-compliance with the

requirement would be impermissible, the delayed compliance

with satisfactory explanation about the delay will be acceptable

compliance with the mandate of Section 50 of the NDPS Act. In

State of Punjab v. Baldev Singh reported in 1999(6) SCC 172,

the Hon'ble Supreme Court dealt with Section 50 of the NDPS

Act and the effect of non-compliance with the same. It was held

that the provisions of Section 50 of the NDPS Act containing

certain protection and safeguards implicitly make it imperative

and obligatory and cast a duty on the Investigating Officer to

ensure that search and seizure of the person concerned is

conducted in a manner prescribed by Section 50 of the NDPS

Act.

Patna High Court CR. APP (SJ) No.993 of 2018 dt.08-03-2021

7. The strict procedural requirement as directed in

Baldev Singh's case (supra) was diluted by insertions of sub-

section 5 and sub-section 6 to Section 50 of the NDPS Act by

Act 9 of 2001. The entire upto date provisions of Section 50 of

the NDPS Act are being reproduced below:-

"50. Conditions under which search of persons shall be

conducted.-

(1) When any officer duly authorised under section 42

is about to search any person under the provisions of

section 41, section 42 or section 43, he shall, if such

person so requires, take such person without

unnecessary delay to the nearest Gazetted Officer of

any of the departments mentioned in section 42 or to

the nearest Magistrate.

(2) If such requisition is made, the officer may detain

the person until he can bring him before the Gazetted

Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before

whom any such person is brought shall, if he sees no

reasonable ground for search, forthwith discharge the

person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a

female.

Patna High Court CR. APP (SJ) No.993 of 2018 dt.08-03-2021

(5) When an officer duly authorised under section 42

has reason to believe that it is not possible to take the

person to be searched to the nearest Gazetted Officer

or Magistrate without the possibility of the person to

be searched parting with possession of any narcotic

drug or psychotropic substance, or controlled

substance or article or document, he may, instead of

taking such person to the nearest Gazetted Officer or

Magistrate, proceed to search the person as provided

under section 100 of the Code of Criminal Procedure,

1973 (2 of 1974).

(6) After a search is conducted under sub-section (5),

the officer shall record the reasons for such belief

which necessitated such search and within seventy-two

hours send a copy thereof to his immediate official

superior."

8. While considering the scheme of the NDPS Act,

the Constitution Bench of the Hon'ble Supreme Court in

Karnail Singh Versus State of Haryana reported in (2009) 8

SCC 539 observed as follows:-

"6. The NDPS Act prescribes stringent punishment.

Hence, a balance must be struck between the need of

the law and the enforcement of such law on the one Patna High Court CR. APP (SJ) No.993 of 2018 dt.08-03-2021

hand and the protection of citizens from oppression

and injustice on the other. This would mean that a

balance must be struck in. The provisions contained

in Chapter V, intended for providing certain checks

on exercise of powers of the authority concerned, are

capable of being misused through arbitrary or

indiscriminate exercise unless strict compliance is

required. The statute mandates that the prosecution

must prove compliance with the said provisions."

9. The prosecution evidence on the record reveals

that the police personnel, who were involved in the raid, search

and seizure, were conscious of the requirement of a Magistrate,

in whose presence, the search is to be effected.

10. P.W. 1 (para 13 and 14) deposed that the

appellants had consented in writing to be searched by the police

and that written consent was handed over to the Investigating

Officer. The witness further admitted that he could not procure

presence of a Gazetted Officer before the search as no one

responded on being tried on mobile call.

The Investigating Officer (P.W. 4) does not say

that any written consent of the appellants, was handed over to

him by the informant nor any such paper was produced in Court.

P.W. 2, who was part of the raiding party, Patna High Court CR. APP (SJ) No.993 of 2018 dt.08-03-2021

admitted in para 13 that nothing was seized in presence of a

Magistrate.

P.W. 3 deposed that P.W. 1 had tried to contact the

Circle Officer on telephone. However, no one received the

phone. This was not put to the appellants while they were being

examined under Section 313 Cr.P.C. that they had consented for

their search by the police itself. Therefore, there is complete

lake of evidence on the record that the appellants had consented

to be searched by the police. In the circumstance, subsequent

requirement of Section 50 of the NDPS Act was to be followed.

If the prosecution takes the aid of sub-section 5 of Section 50 of

the NDPS Act as referred above. The compliance of sub-section

6 of Section 50 of the NDPS Act was necessary and in absence

of evidence of compliance, the prosecution case remains a case

of total non-compliance of mandate of law which is fatal for the

prosecution case.

11. The seizure list witnesses were not produced by

the prosecution and that has prejudiced the defence of the

appellants seriously. P.W. 3 admits that the recovered narcotic

was in packets and the packets were not opened at the spot.

Therefore, there was no material to even suspect that the

recovered substance was narcotic one. Moreover, the

prosecution has failed to bring on the record as to under whose Patna High Court CR. APP (SJ) No.993 of 2018 dt.08-03-2021

custody the recovered substance was kept in the police

Malkhana nor any Malkhana register has been produced. The

Investigating Officer admits that the seized substance was

handed over to him by the informant. The Investigating Officer

sent sample of the same for forensic examination on 10.02.2016.

There is no evidence as to in whose presence, the packets of

seized material were opened and samples were taken out and

sealed nor there is any evidence that from each of the four

packets samples were taken and sealed and thereafter sent for

FSL examination.

12. P.W. 3 stated that weights and measures were

brought from the nearby village for measuring the recovered

substance at the place of recovery whereas P.W. 2 has deposed

that from the police station itself they had taken the weights and

measures. The aforesaid conflicting evidence of the prosecution

witnesses creates serious doubt on search and seizure itself

which is not corroborated by any independent witness.

13. Fair trial is a constitutional guarantee to an

accused under Article 21 of the Constitution of India. Fair Trial

includes fair investigation. Onus lies on the prosecution to

demonstrate that investigation was fair enough not to cause any

prejudice to the accused.

14. From the discussions above, it is evident that Patna High Court CR. APP (SJ) No.993 of 2018 dt.08-03-2021

several infirmities were there in the investigation including non-

compliance of mandates of law and non-support of the factum

of search and seizure by the seizure witnesses. Hence, in my

view, the prosecution has failed to prove the charges against the

appellants beyond reasonable doubt.

15. Mere possession of counterfeit currency notes

would not attract the mischief of Section 489-C of the Indian

Penal Code unless there is evidence that the possession was with

the knowledge of its being counterfeit or having reason to

believe the same to be forged or counterfeit and the possessor

was intending to use the same as genuine. Nothing has come on

the record that the appellant, from whose possession counterfeit

currency notes were recovered, had knowledge that the same

were counterfeit or had reason to believe the same to be forged

or counterfeit. Therefore, conviction under Section 489-C of the

Indian Penal Code is otherwise also not sustainable.

16. Section 22(c) of the NDPS Act relates to

punishment for contravention in relation to psychotropic

substances. Psychotropic substances are defined in Section 2

(xxiii) as follows:-

"psychotropic substance" means any substance,

natural or synthetic, or any natural material or any

salt or preparation of such substance or material Patna High Court CR. APP (SJ) No.993 of 2018 dt.08-03-2021

included in the list of psychotropic substances

specified in the Schedule;"

17. Charas comes within the definition of cannabis

as defined under Section 2(iii) of the NDPS Act and, as such, is

a narcotic drug. Contravention of the law relating to cannabis is

punishable under Section 20 of the NDPS Act. Therefore,

conviction under Section 22(c) of the NDPS Act is otherwise

not sustainable in law.

18. The learned Trial Judge has not taken note of

the aforesaid serious infirmities in the prosecution case. As

such, the impugned judgment and order are hereby set aside and

all the appeals are allowed. Let the appellants be set free at

once.

(Birendra Kumar, J)

Kundan/-

AFR/NAFR                NAFR
CAV DATE                03.03.2021
Uploading Date          08.03.2021
Transmission Date       08.03.2021