Ranjeet Sahani @ Ranjit Sahani vs The State Of Bihar
2021 Latest Caselaw 4651 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (SJ) No.106 of 2016
  Arising Out of PS. Case No.-73 Year-2012 Thana- PALANWA District- East Champaran
======================================================

Paspat Sahani, Son of Late Narsingh Sahani, Resident of village Mushwa Bheriyari, P.S Sugauli, District East Champaran.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (SJ) No. 32 of 2016 Arising Out of PS. Case No.-79 Year-2012 Thana- PALANWA District- East Champaran ====================================================== Ranjeet Sahani @ Ranjit Sahani, Son of Ekarshi Sahani, Resident of Village - Madhu Malti, Mallah Tola, Police Station - Sugauli, District - East Champaran.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (SJ) No. 106 of 2016) For the Appellant/s : Mr. Dhananjay Kumar No.2, Advocate. For the Respondent/s : Mr. S.A.Ahmad, APP. (In CRIMINAL APPEAL (SJ) No. 32 of 2016) For the Appellant/s : Mr.Nitya Nand Tiwary, Advocate. For the Respondent/s : Mr.Binod Bihari Singh, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date : 15-09-2021 Patna High Court CR. APP (SJ) No.106 of 2016 dt.15-09-2021

The appellants above named have challenged their

conviction for offences under Sections 20(b) (ii)(C) and 23(c)

of the N.D.P.S. Act by judgment dated 19.11.2015 passed in

N.D.P.S. Case No. 63 of 2012 arising out of Palanwa P.S. Case

No. 73 of 2012. The learned trial Judge (Additional Sessions

Judge-I, East Champaran at Motihari) by the impugned order of

sentence dated 21.11.2015 awarded 10 years rigorous

imprisonment and a fine of Rs. 1 lac under both the aforesaid

heads of the offences. However, the sentences were ordered to

run concurrently.

2. The prosecution case as disclosed in the written

report of PW-1 Ram Vinay Singh is that he along with his eight

helpers put an ambush near Indo Nepal Border at Piller No. 400,

Bridge No. 88. Some people from the Nepal side carrying

bundles on their head were entering into the territory of India at

about 11 PM on 16.06.2012. When they were stopped for

queries, the people threw their bundles and started fleeing.

Three of them namely the two appellants and one Jado Lal

Yadav were apprehended and in presence of Tribhuwan Prasad

Yadav (PW-5) and Navin Kumar (PW-6), the thrown articles

were searched and it was noticed that ganja like substance was

there. Total weight of the narcotic was 96 Kg. Patna High Court CR. APP (SJ) No.106 of 2016 dt.15-09-2021

3. After investigation, the police submitted

chargesheet against all the three. Co-accused Jado Lal Yadav

claimed to be a juvenile as such his matter was separated and

sent to the Juvenile Justice Board by order dated 06.03.2013.

4. Mr. Dhananjay Kumar No.2, learned counsel for

the appellant Paspat Sahani and Mr. Nityanand Tiwary, learned

counsel for the appellant Ranjeet Sahani contends that the so

called seizure list witnesses have not supported the factum of

search and seizure in their presence and they have not been

declared hostile by the prosecution. Hence the defence can rely

on their testimony which creates serious doubt on the

prosecution case. Moreover, there is total non-compliance of the

mandates of Sections 43 and 50 of the N.D.P.S. Act which goes

to the root of the prosecution case. There is complete lack of

evidence that services of the Magistrate was taken at the time of

search or seizure or at the time of taking out samples for test.

The prosecution case is vague as to how many bundles were

seized and whether samples were taken from all the bundles or

not. The prosecution witnesses are specific that due to darkness

they could not say definitely as to who had thrown the bundle

on his head. Further the prosecution evidence is specific that

nothing was recovered from physical possession of the Patna High Court CR. APP (SJ) No.106 of 2016 dt.15-09-2021

appellants.

5. To contra, Mr. S. A. Ahmad, learned APP in Cr.

Appeal (SJ) No. 106 of 2016 and Mr. Binod Bihari Singh,

learned APP in Cr. Appeal (SJ) No. 32 of 2016 contends that

since recovery was not made from physical possession or from

any vessel or the house etc. of the appellants, hence compliance

of Sections 42, 43 or 50 was not required in this case. The

informant and other police associates have consistently

supported the prosecution case. The learned trial Judge has

considered the aforesaid aspects while recording the judgment

of conviction. Hence the same requires no interference.

6. PW-5 Tribhuwan Prasad Yadav is specific that he

had signed on the blank papers on the instruction of the

informant of this case who was sub-Inspector posted at BPO

Camp, Siswa. He had signed on seizure paper at the camp and

no ganja like substance was seized in his presence. Identical is

statement of PW-6 Navin Kumar and other so called seizure list

witnesses. None of the aforesaid prosecution witnesses have

been declared hostile.

In Raja Ram v. The State of Rajasthan, reported

in (2005) 5 SCC 272, the Hon'ble Supreme Court said that if a

prosecution witness is not declared hostile by the prosecution, Patna High Court CR. APP (SJ) No.106 of 2016 dt.15-09-2021

the defence can rely upon the evidence of such witness and it

would be binding on the prosecution. The same view was

reiterated in Mukhtiar Ahmed Ansari vs. The State (NCT of

Delhi, reported in (2005) 5 SCC 258.

7. Moreover, the production cum seizure list (Ext.-

9) would show that the seizure was made on 17.06.2012 at

16:00 hours and production was made at Bhelahi O.P. campus.

Six bundles containing total weight of 96 Kg. Nepali ganja are

said to be the seized item. This production-cum-seizure list does

not bear signature of the appellants or any witness. A proforma

for seizure memo was also prepared which is Ext.-1. This

proforma does not contain the number of bundles seized. Only

total weight of 96 Kg. is mentioned besides cost of the ganja.

The aforesaid infirmity in the prosecution evidence goes to the

root of the prosecution case.

8. The law is well settled that total non-compliance

of the mandates of N.D.P.S. Act would be fatal for the

prosecution case rather delayed compliance and substantial

compliance would not affect the trustworthiness coupled with

other facts and circumstances of this case.

In the case on hand, the search was made on a

public place and seizure and arrest was also affected at the Patna High Court CR. APP (SJ) No.106 of 2016 dt.15-09-2021

public place. Hence the requirement of Section 43 of the

N.D.P.S. Act was to be followed. Since the case of the

prosecution is that the accused persons had thrown the bundles

on their head and they were apprehended soon along with the

recovery of thrown bundles, it is a case of recovery from

possession of a person. Hence it cannot be argued that the

mandate of the N.D.P.S. Act contained in Sections 43 and 50

was not required to be followed. There is total lack of evidence

that the appellants were informed of their right to be searched in

presence of the Magistrate nor the informant or anyone

attempted to take services of the Magistrate either at the spot or

at the police station where they took the appellants along with

the seized narcotics before opening its seal.

In Saiyad Mohd. @ Saiyad Umar Saiyad and

Others v. The State of Gujarat reported in (1995) 3 SCC 610,

the Hon'ble Supreme Court said that the requirement on the part

of the officer conducting the search to inform the accused of his

right to choose to be searched in the presence of a Gazetted

Officer or a Magistrate is mandatory. The prosecution must

prove that the accused was made aware of his right but he did

not choose to be searched before a Gazetted Officer or a

Magistrate. If no evidence to this effect is brought on the record, Patna High Court CR. APP (SJ) No.106 of 2016 dt.15-09-2021

the Court must assume that the accused was not informed of his

right and must find that the possession of the illicit articles was

not established.

There is no evidence that the appellants were

informed of their right to be searched before a Gazetted Officer

nor there is any evidence that search was made in presence of

any Magistrate. Hence it is doubtful that the recovery was made

from the possession of the appellants.

9. Five prosecution witnesses claim to be there at

the time of search, seizure and arrest. They are PW-1 Ram

Vinay Singh, the informant of this case, PW-2 constable Sunil

Kumar, PW-3 constable Desh Pal Singh, PW-4 constable

Dharmendra Kumar Paswan and PW-7 Constable Gobin

Narjinari.

PW-1 deposed that 8-10 persons were coming from

Nepal to India. All were carrying a packet at their head. When

the informant attempted to catch them, they threw their packet.

Then the police party chased and three of them were

apprehended and rest fled away. The apprehended persons are

the two appellants and one Jado Lal Yadav. The thrown packets

were seized and it was suspected that the same were containing

ganja like substance. Hence they were weighed and total 96 Kg Patna High Court CR. APP (SJ) No.106 of 2016 dt.15-09-2021

was found. Thereafter, along with the seized packets and the

appellants all came to the police camp. The witness has admitted

that he had confidential information received at 21:00 hours that

some narcotics are coming from Nepal side. The witness

deposes that he could not remember how many packets were

seized nor he had written so in his first written report to the

police. All the packets were weighed jointly and none of the

packets were weighed separately. No signature or LTI of the

accused were taken on any of the packets. The packets were not

opened at the place of recovery. Nothing was recovered from

physical possession of the appellants.

According to PW-2, he saw that some people are

entering into Indian side from Nepal carrying packets on their

head. One packet was opened and drug like substance was

noticed. The total weight was 96 Kg. Nothing was recovered

from physical possession of the appellants.

PW-3 Desh Pal Singh deposed that some people

carrying packets at their head were coming towards Indian side

from Nepal. Three of them were apprehended when they were

fleeing after throwing out their packets. In the cross-

examination, the witness is specific that 10-12 persons were

there. Nothing was there with the appellants at the time of their Patna High Court CR. APP (SJ) No.106 of 2016 dt.15-09-2021

arrest.

PW-4 says that only the three apprehended accused

were there carrying bundles on their head wherein ganja was

found. The Nepal border is an open border and anyone from

Nepal or India can move freely within the territory of others.

The people residing on the Border even crosses the border for

marketing purposes and for their livelihood.

According to PW-7, he saw that three persons were

coming from Nepal side and when they saw the police party,

they threw their packets. However, all the three were

apprehended. The witness is specific that each one was carrying

one bundle.

The investigating officer of the case was examined

as court witness. Though he has deposed that he had given

application to the Court for taking out samples and sending

them for forensic examination, but the evidence does not show

that services of any Magistrate was taken for completion of the

aforesaid exercise. The witness deposed that he was handed

over six packets. However, no one informed him that which

packet was being carried by which of the appellant. The witness

is specific that he has not mentioned as to in whose presence the

samples were taken out and from which bundles the samples Patna High Court CR. APP (SJ) No.106 of 2016 dt.15-09-2021

were taken out. The samples were kept in the police station

Malkhana, however it is not mentioned in the case diary. The

appellants do not bear any criminal antecedent.

Thus, the prosecution evidence is that 8-10 persons

were coming from Nepal side and all threw their bundles on

their head, however only six bundles were recovered. Therefore,

it cannot be safely relied that the recovered bundles were thrown

by the appellants, especially in the absence of specific evidence

on the point.

10. 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 the investigation was fair enough to cause no

prejudice to the accused.

In the case on hand, total non-compliance of the

mandate of law, especially in the matter of search and seizure

and taking out samples for forensic examination leaves a lot of

room to doubt the fairness of the investigation. The Malkhana

register or the person who was manning the Malkhana were not

produced before the Court to clear any reasonable doubt

regarding fairness adopted in taking out the samples or keeping

the seized narcotics in safe custody.

Patna High Court CR. APP (SJ) No.106 of 2016 dt.15-09-2021

11. For the aforesaid infirmities, it cannot be said

that the prosecution has successfully proved the charges against

the appellants. Hence, the impugned judgment and sentence are

hereby set aside and these appeals are allowed.

Appellant Ranjeet Sahani is already on bail, he is

exonerated from the liability of bail bond. Appellant Paspat

Sahani is in jail, let him be set free at once.

(Birendra Kumar, J)

mantreshwar/-

AFR/NAFR                AFR
CAV DATE                31.08.2021
Uploading Date          15.09.2021
Transmission Date       15.09.2021