Rana Singh vs The State Of Bihar
2021 Latest Caselaw 1768 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.2487 of 2017
     Arising Out of PS. Case No.-336 Year-2015 Thana- BRAHMPUR District- Buxar

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Rana Singh Son of Late Raghuvansh Singh, Resident of Village- Visheshwar Dera Chakki, P.S.- Brahampur, P.O.- Chakki, District- Buxar.

... ... Appellant/s

Versus

The State Of Bihar

... ... Respondent/s

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

For the Appellant/s     :        Mr. Vikramdeo Singh, Advocate
                                 Mr. Shankar Kumar, Advocate
For the Respondent/s    :        Mr. Zeyaul Hoda, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 25-03-2021

This is an appeal against the judgment of

conviction. The sole appellant has been convicted for offences

under Sections 20(b)(ii)(C) of the N.D.P.S. Act in connection

with N.D.P.S. Case No.8 of 2015, arising out of Brahampur

(Chakki O.P.) P.S. Case No.336 of 2015, by learned Sessions

Judge-cum-Special Judge, Buxar. By the same judgment the

appellant was acquitted of the charges under Sections 27(a) and

29 of the N.D.P.S. Act. The learned trial Judge has sentenced the

appellant to undergo rigorous imprisonment of ten years and to Patna High Court CR. APP (SJ) No.2487 of 2017 dt.25-03-2021

pay a fine of rupees one lac. In default of payment of fine the

appellant would undergo further two years rigorous

imprisonment. The judgment of conviction dated 08.06.2017

and order of sentence dated 12.06.2017 are under challenge in

this appeal.

2. The prosecution case, as disclosed in the self-

statement of Sub-Inspector Narad Muni Singh (PW 1), is that on

24.11.2015, in the morning, the informant got confidential

information that in village Visheshwar Dera illegal Ganja has

come in the house of the appellant for commercial purpose.

Sanha entry was made of the information and the senior officers

were informed. The informant along with the police team

consisting of PW 4 Naresh Yadav, PW 6 Shashi Prakash, PW 7

Harendra Kumar and PW 8 Amit Kumar all constables

proceeded to verify the correctness of the information. As soon

as the police team reached village Visheshwar Dera near the

house of the appellant at 8:00 AM, one person coming out from

the house started fleeing, when he saw the police party.

However, he was apprehended by the police. In the meantime,

the people nearby assembled and in presence of witness Teja

Paswan (PW 9) and Vijmal Paswan (PW 10) the appellant was

informed that police has information that huge quantity of Ganja Patna High Court CR. APP (SJ) No.2487 of 2017 dt.25-03-2021

is in his house. The appellant was further informed whether he

was willing to be searched in presence of a Magistrate. On

willingness of the appellant, services of PW 2 Yogendra

Paswan, B.D.O., was taken as Magistrate. In presence of the

witnesses and the Magistrate house of the appellant was

searched and from a room a black coloured bag and a greenish

black coloured bag was noticed. From the black coloured bag in

a rapped polythene 20 Kgs 600 Gms and from greenish brown

coloured bag 21 Kg 200 gms of Ganja was recovered. From

both the packets a small quantity of 25 gm was taken out for

forensic examination and three samples were made of that

which were sealed in two small plastic box (dabba) and one

small box (dabba meant for keeping Jarda). After sealing the

recovered narcotics and samples and taking signature of the

witnesses and Magistrate on that, the informant also signed,

took the appellant into custody and proceeded for police

station. After investigation the police submitted charge sheet and

accordingly the appellant faced the trial.

3. During course of trial, the prosecution examined

altogether 12 witnesses. The seizure list is on the record as

Exhibit-1, the self-statement of the informant as Exhibit-2, the

formal FIR as Exhibit-3, arrest memo of the appellant as Patna High Court CR. APP (SJ) No.2487 of 2017 dt.25-03-2021

Exhibit-4, written consent of the appellant to be searched in

presence of Magistrate as Exhibit-5 and samples taken for

forensic examination as Exhibit-6. Exhibit-7 series are

signatures of different persons on different documents and

Exhibit-8 is the forensic report.

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

appellant, contends that the prosecution case suffers from

serious infirmities which have been ignored by the learned trial

Judge. The prosecution has failed to establish compliance of the

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

nothing was brought on the record to substantiate that the

informant got the confidential information reduced to writing

and the writing was communicated to the immediate superior

officer. Learned counsel submits that in the case of Karnail

Singh V. State of Haryana reported in (2009) 8 SCC 539, the

Constitution Bench of the Hon'ble Supreme Court held that it is

a question of fact to be decided in each case as to whether there

is adequate or substantial compliance with the requirement of

Section 42 or not. While total non-compliance with the

requirement of Section 42(1) and 42(2) is impermissible, the

delayed compliance with satisfactory explanation about the

delay will be acceptable compliance with Section 42 of the Act. Patna High Court CR. APP (SJ) No.2487 of 2017 dt.25-03-2021

Learned counsel next contends that PW 9 and PW

10 the so called seizure witnesses have not supported the factum

of search and seizure in their presence. They are not hostile

witnesses. Therefore, their testimony is reliable. Moreover,

there is material contradiction in the testimony of the

prosecution witnesses of search and seizure, which shrouds the

trustworthiness of the prosecution case with cloud. Learned

counsel for the appellant contends that PW 5 Sima Patel, the

scientist, who had examined the sample sent to the Forensic

Science Laboratory has stated that she had received only one

sample. Even PW 1 said that samples from both the bags were

taken out and they were mixed and thereafter three packets were

made which shows that the prosecution did not take care to take

separate sample from both the bags to establish that both were

containing Ganja. Learned counsel contends that the prosecution

evidence is shaky that the recovered Ganja was of the

petitioner.

5. Mr. Zeyaul Hoda, learned Additional Public

Prosecution for the State-respondent, submits that the allegation

is very serious of recovery of 41.80 Kgs of Ganja from the

house of the petitioner. The forensic examination report at

Exhibit-8 and evidence of PW 5 the expert would reveal that the Patna High Court CR. APP (SJ) No.2487 of 2017 dt.25-03-2021

recovered substance was Ganja containing tetra hydro

cannabinol as their chief intoxicating ingredient. He further

contends that the seizure list witnesses have admitted their

signature on search and seizure list and evidence of other

witnesses of search and seizure, who have no reason to depose

against the appellant, cannot be overlooked considering the

object of the legislation to curb the menace of this social evil

which is not only affecting the economy; rather is responsible

for health-hazard of the community at large. There is no

evidence that the police was biased against the appellant.

Hence, for some minor technical flows the trustworthiness of

the prosecution evidence cannot be thrown away.

F I ND I N G S

6. In Karnail Singh V. The 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 sub-sections (1) and (2) of Section 42 of the

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

adversely affect the prosecution case.

There is nothing on the record to substantiate that

the informant police officer got the confidential information

received by him reduced into writing and communicated to his Patna High Court CR. APP (SJ) No.2487 of 2017 dt.25-03-2021

immediate superior officer. Such writing might have been in

physical form or electronic mode but nothing was brought on

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

was complied. For this lapse alone the prosecution case is fit to

be disbelieved and discarded.

7. Fair trial is a constitutional guaranty to an

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

includes fair investigation. Onus lies on the prosecution to

demonstrate that the investigation was fair enough to not cause

any prejudice to the accused.

8. In the case on hand, the following discrepancies

in the prosecution evidence are worth consideration:

(a) The so-called seizure witnesses, PW 9 and PW

10, have specifically deposed that no search or seizure was

made in their presence; rather their signature was taken on blank

paper in Bhariyar Bazar. The police pressurized for signature on

the blank paper. 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 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. The aforesaid view was reiterated in Patna High Court CR. APP (SJ) No.2487 of 2017 dt.25-03-2021

Mukhtiar Ahmed Ansari V. the State NCT of Delhi reported

in 2005 (5) SCC 258.

(b) There is no evidence as to who identified the

house of the appellant; rather the prosecution evidence is that

the appellant was not known to the police party. According to

PW 1 (para-25) at the time of search two brothers of the

appellant Bipin Singh and another name not known were inside

the house. No female or children were there. According to PW

2 (para-5) in the house of the appellant besides brothers, mother,

wife and children were there. According to PW 4 (para-6), at the

time of search Bipin Kumar Singh and Bhagwan Singh brothers

of the appellant were in the house. No female or children were

there. According to PW 6 (para-2), only an old lady was there in

the house at the time of search. PW 7 and PW 8 who were also

members of the search party are specific that there was no one at

the house of appellant at the time of search and seizure.

According to PW 1 (para-22), constable Shashi Prakash had

taken out the narcotics from the room. PW 6 Shashi Prakash

says that he was unable to say who had taken out the two bags

containing Ganja from the room. The aforesaid conflicting

evidence creates doubt on the trustworthiness of these witnesses

to have participated in the search of the house of the appellant. Patna High Court CR. APP (SJ) No.2487 of 2017 dt.25-03-2021

(c) According to some of the prosecution witnesses,

who claims to be part of the search, only one room of the house

was searched whereas according to PW 6, a member of the

search party, all the six rooms in the house were searched. PW

1 says that the seized narcotics and samples were sealed in

white coloured clothes and no time and place of sealing is

mentioned thereon; whereas PW 2 the deputed Magistrate said

that the seized items were sealed after wrapping with a blue

coloured clothes. According to PW 2, the sealing was made

after stitching the wrapper whereas according to PW 1 only

knots of the seized materials were tied and not stitched.

(d) PW 2 the deputed Magistrate is specific in para-

8 that no article of the appellant was found in the room from

where Ganja was recovered including any document of identity

proof of the appellant. The prosecution witnesses were cross-

examined whether they tried to verify any document including

electric bill etc. to establish that the house belongs to the

appellant but they have failed to substantiate the same.

(e) The informant (PW 1) says that the seized

narcotics and samples were kept in Malkhana of the police

station. The investigating officer (PW 11) deposed that the

seized articles were handed over to him and he had kept the Patna High Court CR. APP (SJ) No.2487 of 2017 dt.25-03-2021

same in the Malkhana. The Malkhana register was not produced

to the Court to ensure that the seized materials were kept in the

custody of some person other than the informant nor the in-

charge Malkhana was examined to substantiate the aforesaid

fact. PW 1 has admitted in the cross-examination vide para-39

that the sealed narcotics produced in the Court were in such a

condition that anything can be put in or taken out from the bag

wherein the narcotic was there.

9. On careful scrutiny of the prosecution evidence,

it is evident that there is total non-compliance of mandate of

Section 42 of the N.D.P.S. Act. The prosecution evidence is

shaky and suspicious as to whether the prosecution witnesses

have really participated in any actual search and seizure. The

independent witnesses of seizure have not supported the factum

of seizure in their presence. The sampling of the seized articles

was not properly done as small quantity taken from each of the

bags were mixed and, thereafter, three samples were made as

per PW 1 and only one packet of sample was sent for forensic

examination as per PW 5. The prosecution has failed to prove

that the place of recovery is of the appellant and the appellant

was solely responsible for the recovered Ganja especially when

other family members were there inside the house and the Patna High Court CR. APP (SJ) No.2487 of 2017 dt.25-03-2021

appellant was arrested from outside the house. The prosecution

failed to prove that sanctity in the matter of sealing the seized

narcotics was maintained besides sanctity in the matter of

preserving it in the possession and condition which leaves no

room to doubt about the chances of tampering.

10. Therefore, in my view, this is a case wherein

the prosecution has failed to prove the charge against the

appellant beyond all reasonable doubt.

11. Hence, this appeal succeeds. The impugned

judgment and order of sentence are hereby set aside. The

appellant, who is serving out the sentence, is directed to be set

free at once.

(Birendra Kumar, J) Mkr./-

AFR/NAFR                AFR
CAV DATE                22.03.2021
Uploading Date          25.03.2021
Transmission Date       25.03.2021