Patna High Court
Md. Khalik vs The Union Of India Through ... on 6 May, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1139 of 2016
Arising Out of PS. Case No.-15 Year-2014 Thana- GOVERNMENT OFFICIAL COMP.
District- Patna
======================================================
Md. Khalik Son of Late Md. Nankau Resident of Village- Basawanpur,
Kamrawan, P.S.- Jadpur, District- Barabanki, State- U.P.
... ... Appellant.
Versus
The Union of India through Directorate of Revenue Intelligence, Regional
Unit, Patna
... ... Respondent.
WITH
CRIMINAL APPEAL (DB) No. 1060 of 2016
Arising Out of PS. Case No.- Year-1111 Thana- District-
======================================================
Jamir Alam Ali Son of Md. Jahur Ali resident of Village- Thoubal Moijing
Awang Laikai, P.O., P.S. and District- Thoubal, State- Manipur.
... ... Appellant.
Versus
The Union of India through Directorate of Revenue Intelligence, Regional
Unit, Patna
... ... Respondent.
======================================================
WITH
CRIMINAL APPEAL (DB) No. 1147 of 2016
Arising Out of PS. Case No.-15 Year-2014 Thana- GOVERNMENT OFFICIAL COMP.
District- Patna
======================================================
Md. Furkan Son of Amusana, Resident of village- Thoubal Moising
Kangjaibung, P.O, and P.S.- Thoubal, District- Thoubal (Manipur).
... ... Appellant.
Versus
1. The State of Bihar.
2. The intelligence Officer, Office of the Directorate of Revenue Intelligence
(DRI), Regional Unit, Patna.
... ... Respondent.
======================================================
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
Appearance :
(In CRIMINAL APPEAL (DB) No. 1139 of 2016)
For the Appellant : Dr. Brahma Deo Prasad, Advocate.
: Mr. Dhananjay Nath Tiwary, Advocate.
Mr. Bikram Deo Singh, Advocate.
Mr. Arun Kumar Tiwary, Advocate.
Mr. Binoy Kumar Sinha, Advocate.
For the Respondent : Mr. Ramakant Sharma, Senior Advocate.
(D.R.I.) Mr. Alok Ranjan, JC to CGC
(In CRIMINAL APPEAL (DB) No. 1060 of 2016)
For the Appellant : Dr. Brahma Deo Prasad, Advocate.
For the Respondent : Mr. Ramakant Sharma, Senior Advocate.
(D.R.I.) : Mr. Radhika Raman, C.G.C.
(In CRIMINAL APPEAL (DB) No. 1147 of 2016)
For the Appellant : Mr. Diwakar Upadhyaya, Advocate.
Mr. Dhananjay Nath Tiwary, Advocate.
For the State : Mr. Ganesh Prasad Jaiswal, A.P.P.
For the Respondent : Mr. Ramakant Sharma, Senior Advocate.
(D.R.I.) Mr. Radhika Raman, CGC.
======================================================
CORAM: HONOURABLE MR. JUSTICE A. M. BADAR
and
HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE A. M. BADAR)
Date : 06-05-2022
Criminal Appeal (DB) No.1139 of 2016 has been
filed by accused no.3 Md. Khalik, Criminal Appeal (DB)
No.1147 of 2016 has been filed by accused no.2 Md. Furkan
whereas Criminal Appeal (DB) No.1060 of 2016 has been filed
by accused no.1 Md. Jamir Alam Ali. By these appeals, they are
challenging the Judgment and Order dated 15.09.2016 and
21.09.2016 respectively passed by the learned Additional
Sessions Judge-VII, Patna, in Special Case No.15 of 2014
thereby convicting them of offences punishable under Sections
21(c), 27A and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as the "N.D.P.S.
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
Act"). On first two counts, they all are separately sentenced to
suffer rigorous imprisonment for 12 years by each of them apart
from payment of fine of Rs.1,00,000/- and in default, to undergo
three years of default sentence by each of them. On third count,
i.e., for the offence punishable under Section 29 of the N.D.P.S.
Act, they all are sentenced to suffer rigorous imprisonment for 5
years. Substantive sentences are directed to run concurrently by
the learned trial court. As all these appeals are arising out of the
same Judgment and Order, they are being decided by this
common Judgment. For the sake of convenience, the appellants/
convicted accused shall be referred to in their original capacity
as "an accused".
2. Facts leading to the prosecution of the accused
persons can be summarized thus:
(a). P.W.4 Anubhav Kumar, Intelligence Officer,
Directorate of Revenue Intelligence, Regional Unit, Patna
(hereinafter referred to as the "D.R.I.") had filed a complaint
alleging commission of offences punishable under Sections
21(c), 27(A) and 29 of the N.D.P.S. Act, 1985 against the
appellants/accused no.1, Md. Jamir, appellant/accused no.2 Md.
Furkan and appellant/accused no.3 Md. Khalik. Accused no.4
Md. Kadeer, accused no.5 Haji Kayyum, accused no.6 Haji
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
Mujib Pinda, accused no.7 Md. Siraj and accused no.8 Md.
Izhar were also arraigned as absconding accused in the said
complaint with an averment that these accused nos.4 to 8 were
found absconding from their homes. Penal Sections of the
N.D.P.S. Act invoked against the accused persons can be seen
from paragraphs-17 and 18 of the said complaint which led to
the registration of Special Case No.15 of 2014 and those
paragraphs reads thus:
"17. That Md. Jamir Alam Ali, Md. Furkan and Md.
Khalik were caught red handed while in possession
of the packets containing Heroin and have admitted
their conscious individual involvement in this act of
smuggling or Heroin in lure of money. All the
three accused, found in possession of of the packet
containing such huge quantity of Heroin, appear
consciously involved in the abatement,
sale/purchase, carriage/transportation and
possession of Heroin, and thus are liable to
punishment under section 21(C) and 29 of the
NDPS Act 1985.
18. That Md. Kadeer, Haji Kayyum, Haji Mujib
Pinda,, Md. Siraj and Md. Izhar are absconding and
have avoided their appearance before the
investigating officer. Though, all of them have
submitted in writing that they are innocent and
responsible citizens, the way they are absconding
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
from their homes and the statement tendered by
Jamir, Furkan, Khalik and his wife indicates that
they are involved in this smuggling of Heroin.
Khalik has stated that Kadeer, Haji Kayyum, Haji
Mujib Pinda, Siraj and Izhar are equal partners and
financier and used to take delivery of Heroin. This
was also confirmed by Jamir and Smt Ruksar
Bano, wife of Khalik in their statement. Furkan too
was aware that the Heroin being carried by him was
destined to Kadeer. Md. Izhar is village Head and
in spite of that he was absent when the follow-up
was conducted at his residence on 07.05.2014 and
again on 22.07.2014. This shows that Md. Kadeer,
Haji Kayyum, Haji Mujib Pinda, Md. Siraj and Md.
Izhar are financiers and partners in this smuggling
of Heroin and thus appears liable to punishment
under section 27A and section 29 of the Act for
committing offence in violation of section 8(C) of
the said Act."
Thus, so far as the accused nos.1 to 3, who were in
appearance before the learned trial court are concerned,
allegations are to the effect that they were found to be in
conscious possession of Heroin which is an Opium derivative, a
manufactured drug and were involved in its sell, purchase,
transport, import and export inter State so also in abatement to
commit the offence punishable under the N.D.P.S. Act. As
against the absconding accused allegations, as seen from the
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
complaint, are to the effect that they were financers and partners
in smuggling of the Heroin so also in abetting the commission
of such offence of smuggling and finance.
(b). Now, let us advert to the facts which led to filing
of this complaint by P.W.4 Anubhav Kumar, the Intelligence
Officer. According to the prosecution case, on 20.02.2014,
P.W.5 Aditya Ranjan, the Intelligence Officer of the D.R.I.
Patna, had received specific intelligence (Ext.32) from the
Deputy Director, D.R.I., Lucknow, to the effect that accused
no.1 Jamir and accused no.2 Furkan have brought two
kilograms of Heroin from Manipur and the same will be handed
over to accused no.3 Khalik on instructions of Md. Kadeer
(absconding accused no.4). P.W.5 Aditya Ranjan had reduced
that information in writing (Ext.32) and produced the same
before his immediate Official Superior, i.e., the Deputy Director,
D.R.I., Patna, who directed P.W.5 Aditya Ranjan to form a team
and take action in the matter (Ext.32A). That is how, a team
comprising of P.W.1 Dhirendra Kumar Singh,
Intelligence Officer, P.W.2 Pradip Kumar Pandey, Intelligence
Officer, and P.W.3 Yogeshwar Nath Tiwary, Intelligence
Officer, as well as others came to be formed by P.W.5 Aditya
Ranjan.
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
(c). That team of the D.R.I., Patna, then rushed to
the Hotel Ashirward, Station Road, Patna, at about 17 hours
(05.00 P.M.) on 20.02.2014 itself. Employees Arvind Kumar
and Sudhir Kumar (not examined as witnesses) of that hotel
were found present at the reception counter and they had agreed
to act as Punch witnesses to the proceedings of the search and
seizure. Taking them, the team of the D.R.I. went to the Room
No.101 of Ashirwad Hotel, the door of which was found open.
Accused no.1 Md. Jamir, accused no.2 Md. Furkan and accused
no.3 Md. Khalik were found sitting on the bed of that room and
each one of them was holding a brown polythene packet in their
hand. P.W.5 Aditya Ranjan then, in compliance of Section 50 of
the N.D.P.S. Act gave written options (Exts.8 to 10) to those
accused persons for getting themselves searched in presence of
the Gazetted Officer or the nearest Magistrate. All accused
persons agreed in writing that they be searched by P.W.5 Aditya
Ranjan, Intelligence Officer. Personal search of accused no.1
Md. Jamir, accused no.2 Md. Furkan and accused no.3 Md.
Khalik was taken by P.W.5 Aditya Ranjan. The contents of the
packets held by them (which were respectively marked as 'A',
'B' and 'C') was tested positive for Heroin. Accused were
found to be possessing sundry articles such as blank cheque,
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
Debit-card, driving licence, mobile phones etc.
(d). As accused persons had requested the Officers
of the D.R.I. to take them to some safe place for further
proceedings, they all along with independent witnesses were
taken to the office of the D.R.I., Patna, for safety and security
reasons. Weightment of packets which were marked as 'A', 'B'
and 'C' respectively found in possession of accused no.1 Md.
Jamir, accused no.2 Md. Furkan and accused no.3 Md. Khalik
was done. Gross weight of packet 'A' was found 615 grams,
that of packet 'B' was found 613 grams and that of packet 'C'
was found to be 615 grams, totaling 1.843 kilograms. Two
samples each weighing 5 grams were drawn from the contents
of packets marked as 'A', 'B' and 'C'. Those samples were kept
in polythene pouches and marked as 'A-1', 'A-2', 'B-1', 'B-2',
'C-1' and 'C-2'. The samples were sealed with plastic adhesive
tapes. Those packets were then kept in three envelopes marked
as 'A-1 A-2', 'B-1 B-2', 'C-1 C-2'. Those envelopes were
sealed. Packets 'A', 'B' and 'C' containing residual substance
came to be sealed with adhesive tapes and those packets were
separately kept in three envelopes, which were marked as 'A',
'B' and 'C'. The envelopes containing the residual substance
came to be sealed.
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
(e). P.W.5 Aditya Ranjan then recorded the
confessional statements Exts.13, 14 and 15 of all three accused
by resorting the provisions of Section 67 of the N.D.P.S. Act,
separately. As per those confessional statements, accused no.1
Md. Jamir made a deal with absconding accused Md. Kadeer to
supply 1.8 kilograms of Heroin. Accused No.1 Jamir was
informed by absconding accused Kadeer that accused no.3
Khalik will come to take delivery of Heroin. Accused no.1
Jamir asked accused no.2 Furkan to bring that consignment of
Heroin procured by absconding accused Kadeer to Patna. That
is how, accused no.2 Furkan brought Heroin to Patna on on
20.02.2014. Absconding accused Kadeer told accused no.3
Khalik to go to Patna and meet accused no.1 Jamir. Then all
three accused persons, namely, accused no.1 Jamir, accused no.2
Furkan and accused no.3 Khalik met at Patna on 20.02.2014.
They then went to Railway Station at Patna, booked a ticket for
accused no.3 Khalik for Sultanpur. From there, they returned to
Ashirwad Hotel, Patna. When accused no.1 Jamir and accused
no.2 Furkan were in the process of handing over the Heroin to
accused no.3 Khalik, they were caught by the team of the D.R.I.
Patna. This is what the gist of the confessional statement of the
accused persons is.
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
(f). Thereafter, P.W.5 Aditya Ranjan had seized the
contraband at about 11.15 P.M. of 20.02.2014 vide Seizure
Memo (Ext.4). On 21.02.2014, he sent report (Ext. 34) under
Section 57 of the N.D.P.S. Act of arrest and seizure to the
Deputy Director, D.R.I., Patna. On 20.02.2014 vide
communication at Ext.11, P.W.5 Aditya Ranjan, Intelligence
Officer, sent the samples marked as 'A-1', 'B-1' and 'C-1' to the
Chemical Analyzer of the Joint Director Chemical Laboratory,
Kolkata, through the Special Messanger. The Chemical
Analyzer vide his report (Ext.12) dated 08.08.2014 confirmed
the fact that the three samples which were in the form of brown
colour powder tested positive for presence of Heroin, Morphine,
6- Monoacetyl Morphine and Codeiane. P.W.5 Aditya Ranjan
then sent a request letter (Ex.29) for certifying the inventory.
Accordingly, on 26.03.2014, Sri Upendra Kumar, the learned
Judicial Magistrate certified the inventory as per the provisions
of Section 52-A of the N.D.P.S. Act by recording that packets
marked as 'A', 'B' and 'C' were respectively weighing 605
grams, 603 grams and 605 grams totaling to 1.813 kilograms
(gross weight). The learned Judicial Magistrate then drew two
samples from each packet which were marked as 'A', 'B' and
'C'. Those two samples drawn by him were marked as
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
'A-3', 'A-4', 'B-3', 'B-4'and 'C-3' 'C-4'. Samples, the
packets of which were marked as 'A-3', 'B-3' and
'C-3' by the learned Judicial Magistrate, First Class, were
handed over by him to the Inspector of Godown, Customs,
whereas the samples, which were marked as 'A-4', 'B-4' and
'C-4' from the respective packets, were kept by the learned
Judicial Magistrate, First Class, for producing the same before
the learned Special Court, Patna. The learned Judicial
Magistrate, First Class, then issued the necessary certificate
(Ext.30) certifying the inventory.
(g). It is averred in the complaint filed by P.W.5
Aditya Ranjan that steps were taken for securing the presence of
accused nos.4 to 8 by issuing summons and by visiting their
residence. However, none of them were found present in their
residence.
(h). That is how, P.W.5 Aditya Ranjan had filed the
complaint and by taking cognizance of the alleged offence, the
learned trial court had framed the charge for the offences
punishable under Section 21(c), 27A and 29 of the N.D.P.S. Act
against all three accused persons, who were before it.
(i). In order to bring home the guilt to the accused,
the prosecution has examined in all five witnesses. Those are:
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
(A).P.W.1 Dhirendra Kumar Singh- Intelligence
Officer and Member of the raiding party.
(B). P.W.2 Pradip Kumar Pandey- Intelligence
Officer and Member of the raiding party.
(C).P.W.3 Yogeshwar Nath Tiwary-Intelligence
Officer and Member of the raiding party.
(D). P.W.4 Anubhav Kumar-the Intelligence Officer,
who investigated the crime subsequent to the
raid.
(E).P.W.5 Aditya Ranjan-The Complainant/
Intelligence Officer and the Investigating Officer
who conducted raid and effected seizure.
(j). In addition to oral evidence of official witnesses,
the prosecution has placed reliance on the documentary
evidence in the form of following documents:
Sl. Exhibit(s) Description
No.
1. 3 Panchnama of events at Ashirwad Hotel and
the office of the D.R.I. leading to seizure of
packets containing Heroin marked as 'A' 'B'
and 'C' as well as pockets of samples drawn
and marked 'A-1 A-2', 'B-1 B-2' 'C-1, C-2'
so also the sundry articles from the accused
persons.
2. 4 Seizure Memo of three packets marked 'A' ,
'B' and 'C' allegedly containing Heroin by
P.W.5 Aditya Ranjan.
3. 5, 6 and 7 Arrest Memos of accused persons.
4. 8 to 10 Option given to accused persons in writing
about search by the Gazetted Officer or the
nearing Magistrate in pursuant to Section 50
of the N.D.P.S. Act.
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
5. 11 Requisition to the Chemical Analyzer for
testing contents of samples 'A-1', 'B-1', 'C-1'
for detection of Heroin.
6. 12 Report of chemical analysis of samples 'A-1',
'B-1''C-1' mentioning presence of Heroin,
Morphine, 6-Monoacetyl Morphine and
Codeiance.
7. 13 Statement of accused Md. Jamir under
Section 67 of the N.D.P.S. Act.
8. 14 Statement of accused Md. Furkan under
Section 67 of the N.D.P.S. Act.
9. 15 Statement of accused Md. Khalik under
Section 67 of the N.D.P.S. Act.
10. 16 to 20 Sundry documents seized from accused
persons such as Railway Ticket, Blank
Cheques and Chits.
11. 29 Request Letter by P.W.5 Aditya Ranjan to the
Sessions Court, Patna, for certifying the
inventory.
12. 30 Certification of inventory by the learned
Judicial Magistrate, Patna.
13. 32, 32A Forwarding of the recorded secret information
regarding Heroin by P.W.5 Aditya Ranjan, the
Intelligence Officer, to the Deputy Director of
the D.R.I. and order of the said Superior
Authority for formation of the team for raid.
14. 34 Report under Section 57 of the N.D.P.S. Act
regarding seizure of 1.843 Kilograms of
Heroin by P.W.5 Aditya Ranjan to the Deputy
Director, D.R.I.
15. 33 Inventory of seized goods-Heroin.
16. 31, 31/1, Envelopes containing samples 'A-4' 'B-4' 'C-
31/2 4' of seized Heroin drawn by the learned
Judicial Magistrate.
(k). The defence of the accused persons was that of
total denial. They contented that they are falsely implicated in
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
the subject crime. Accused no.1 Jamir alleged that he had
quarreled with the Officers of the D.R.I. and, therefore, he is
falsely implicated in the subject crime.
(l). After hearing the parties, by the impugned
Judgment and Order, the learned trial court was pleased to
convict the accused persons and to sentence them as indicated
in the opening paragraphs of this Judgment.
3. We heard the learned counsel appearing for the
appellants at sufficient length of time. He argued that though
two Panches, namely, Arvind Kumar and Sudhir Kumar had
allegedly witnessed the search and seizure of Heroin, the
prosecution has not examined them and the case of the
prosecution is based on interested testimony of the official
witnesses. It is further argued that the seized contraband was
not produced in the trial court and, therefore, the case of the
prosecution is rendered suspect. To buttress, this submission,
reliance is placed on the Judgment dated 28th and 29th
September, 2017 passed in Criminal Appeal No.708 of 2010
Premsingh Hijarilal Jaiswal V/s. The State of Maharashtra
by the Bombay High Court. It was further argued that even
the samples drawn by the learned Judicial Magistrate were not
produced in the court. The learned counsel for the appellants
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
vehemently argued that there is total non compliance of
provisions of Section 313 of the Code of Criminal Procedure.
The questions which ought to have been put to the accused for
seeking their explanation for basing the conviction on the
evidence adduced by the prosecution were not put to them and
thereby the entire trial is vitiated. It is submitted that as the
relevant circumstances were not put to the accused persons
those are required to be kept out of consideration and if it is
done so, then no evidence remains against the accused persons.
To buttress this submission, reliance is also placed on the
Judgment of the Division Bench of this Court in the matter of
Jagat Prasad Vs. The State of Bihar and Anr., reported in
2022(1) PLJR 568.
4. As against this, the learned Senior Advocate
appearing for the Respondent/Original Complainant argued that
the accused persons were found in conscious possession of
Heroin weighing more than 1.800 kilograms and evidence
adduced by the prosecution through its official witnesses is
trustworthy and reliable. Non-examination of Panch witnesses is
of no consequence. It is further argued that accused persons
have failed to point out any prejudice caused to them in their
examination under Section 313 of the Code of Criminal
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
Procedure. It is further argued that necessary questions were put
to the accused by the learned trial court and, therefore, it cannot
be said that there was no proper examination of the accused
persons under Section 313 of the Code of Criminal Procedure.
Mr. Ramakant Sharma, the learned Senior Advocate appearing
for the Respondent placed reliance on the Judgment of the
Hon'ble Apex Court in Criminal Appeal No.1479 of 2008
Dharampal Singh Vs. State of Punjab decided on 9th
September, 2010 on this aspect of the matter.
5. We have carefully considered the submissions so
advanced and also perused the records and proceedings.
6. Now let us put on record version of official
witnesses examined by the prosecution which is congruous and
in tune with the prosecution case.
7. P.W.5 Aditya Ranjan, the Intelligence Officer of
the D.R.I., Patna, had received the secret information in respect
of the purchase and sale as well as smuggling of Heroin on
20.02.2014 and as per his version, after recording the same, he
had forwarded the same to the immediate Official Superior, i.e.,
the Deputy Director, D.R.I., Patna, who had then directed for
forming a team for conducting raid and this version of P.W.5
Aditya Ranjan is gaining corroboration from the
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
contemporaneously recorded secret informant (Ext.32) and
direction thereon by the Deputy Director, D.R.I., Patna, for
taking action by forming team which is at Ext.32A. P.W.5
Aditya Ranjan deposed that then he formed the team comprising
of P.W.1 Dhirendra Kumar Singh, P.W.2 Pradip Kumar Pandey,
P.W.3 Yogeshwar Nath Tiwary apart from himself and the team
then went to the Hotel Ashirwad, Patna. As per version of P.W.5
Aditya Ranjan then two employees of the Hotel including
Arvind Kumar had agree to act as Panch Witnesses. Then they
all went to Room No.101 of that Hotel and found all three
accused persons in that room holding one polythene packet
each, which was found to be sealed by the tape. P.W.5 Aditya
Ranjan then stated that he gave option under Section 50 of the
N.D.P.S. Act (Exts.8 to 10) to all of them but they all expressed
that P.W.5 Aditya Ranjan can take their search. P.W.5 Aditya
Ranjan testified that then he examined brown power found in
the packet held by accused no.1 Md. Jamir by the field testing
kit and that substance tested for positive of Heroin. He has also
spoken about the personal search of accused Md. Jamir. In the
similar way, P.W.5 Aditya Ranjan deposed about testing the
substance found in the packets held by accused Furkan and
accused Khalik by the field testing kit and about finding that
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
substance as Heroin. This witness has also stated that personal
search of the accused persons yielded in recovery of sundry
articles. Thereafter, as stated by this witness, the accused
persons along with the envelopes found with them containing
wet brown powder, which were marked as 'A', 'B' 'C', were
taken to the office of the D.R.I. As per his version, gross weight
of packet 'A' and 'C' was found to be 615 grams and gross
weight of packet 'B' was found to be 613 grams. He has also
spoken about drawing two samples each weighing 5 grams from
each of three packets and marking them as 'A-1 A-2', 'B-1 B-
2', and 'C-1 C-2'. P.W.5 Aditya Ranjan had testified about
sealing and packing those packets as well as samples drawn
from those packets. He has also deposed that thereafter
Panchnama (Ext.3) of the event took place came to be recorded
and about preparation of Seizure Memo (Ext.4) seizing Heroin
weighing 1.843 Kilograms (gross). As stated by P.W.5 Aditya
Ranjan then three samples, which were marked as 'A-1' , 'B-1',
'C-1' seized from accused persons were sent for chemical
analysis to the Chemical Laboratory, Kolkata vide Test Memo
(Ext.11) as well as recording of confessional statements Ext.13,
14 and 15 of the accused Jamir, Furkan and Khalik respectively.
Seizure of sundry articles from the accused persons is also
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
deposed by him. As stated by P.W.5 Aditya Ranjan, then he
applied for certification of inventory to the Sessions Judge,
Patna, vide Request Letter (Ext.29) as well as further action
about certification of the inventory by the Judicial Magistrate
and receipt of Certificate (Ext.32) to that effect from the Judicial
Magistrate. As stated by P.W.5 Aditya Ranjan, samples in
packets 'A-4', 'B-4' and 'C-4' before the court are the samples
drawn by the learned Judicial Magistrate while certifying the
inventory. The packets containing samples of Heroin seized
from accused persons then came to be marked as Exts.31, 31/1
and 31/2. This witness proved the documents prepared during
the course of search and seizure of the contraband.
8. In cross examination, P.W.5 Aditya Ranjan has
confrmed that recorded secret information was produced by him
before the Deputy Director. He accepted the fact that Arrest
Memos are not bearing the signatures of members of the team.
He reiterated that Heroin was detected in the packets held by the
accused persons when they were tested by the field testing kit.
He admitted that in the chemical analysis of the seized
substance, percentage of Morphine is not mentioned. He denied
that by exerting pressure, signature of accused persons was
taken on option given to them under Section 50 of the N.D.P.S.
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
Act. He denied that because of quarrel with the accused at the
counter of the Hotel, they are falsely implicated in the instant
case. This is what is the evidence of complainant Aditya
Ranjan.
9. P.W.1 Dhirendra Kumar Singh is also the Officer
of the D.R.I and one of the members of the raiding team. His
version is in tune with the version of complainant-P.W.5 Aditya
Ranjan. In cross examination, he has stated that on telephonic
instructions, he joined raiding party. He admitted that his
signature is not there on the documents such as Panchnama,
search-cum-seizure list, arrest memo etc.
10. P.W.2 Pradip Kumar Pandey is another Officer
of the D.R.I., who was member of the raiding team. His version
is congruous to that of P.W.5 Aditya Ranjan. He has also
spoken about the raid at Room No.101 of the Hotel Ashirwad
and finding the accused persons thereat holding three packets
containing Heroin. He testified about further proceeding
leading to seizure of the contraband. In cross-examination, he
stated that he received oral order from P.W.5 Aditya Ranjan to
join the raiding party. He denied the suggestion that the accused
persons are falsely implicated in the subject crime.
11. Similar is the version of P.W.3 Yogeshwar Nath
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
Tiway, another member of the raiding party and the employee of
the D.R.I. He has also stated about raid at Room No.101 of the
Hotel Ashirwad leading to seizure of three packets containing
Heroin from accused persons In cross examination, he stated
that no written orders were issued directing him to join the
raiding party. He stated that accused were searched and arrested
in his presence and then further proceedings were taken at the
office of the D.R.I. He admitted that his signature is not there
on the seizure list, arrest memos and Panchnama. He denied
that there was quarrel between the accused and P.W.5 Aditya
Ranjan leading to their false implication.
12. P.W.4 Anubhav Kumar is the Intelligence Officer
who conducted further investigation after transfer of P.W.5
Aditya Ranjan. His evidence is primarily in respect of the
follow up action taken by him after search and seizure and he is
not an eye witness to the incident of search and seizure. He has
stated that he is not knowing as to with whom the samples were
from 20.02.2014 to 22.02.2014. He stated that there is no
Malkhana in his office. He stated that the samples drawn from
the seized substance were deposited in the godown on
24.02.2014.
13. On the basis of oral as well as documentary
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
evidence adduced by the prosecution in the instant case, as
stated in the foregoing paragraphs, all three accused came to be
convicted of the offences punishable under Sections 21(c), 27A
and 29 of the N.D.P.S. Act. Apart from sentencing them to
rigorous imprisonment for 12 years on first two counts, they are
also directed to pay fine of Rs.1,00,000/- by each of them on
first and second count. On third count, they are sentenced to
suffer rigorous imprisonment for five years. Conviction of the
accused persons, as seen from the Judgment of the learned trial
court, is based on several circumstances appearing in evidence
adduced by the prosecution and accepted as proved by the
learned trial Court for basing the conviction and resultant
sentence. Amongst other, following are those circumstances:-
(I). P.W.5 Aditya Ranjan , Intelligence Officer, had
received secret information from the Deputy Director, D.R.I.,
Lucknow, telephonically to the effect that accused no.1 Md.
Jamir and accused no.2 Md. Furkan have brought two kilograms
of Heroin from Manipur and they were giving the same to
accused no.3 Md. Khalik at Hotel Ashirwad, Patna, on
20.02.2014. By recording this information (Ext.32), it was
submitted to the immediate Official Superior, i.e. the Deputy
Director, D.R.I., Patna, who ordered (Ext.32A) to form a team
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
and take action immediately.
(II). P.W.5 Aditya Ranjan then formed a team
comprising of himself, P.W.1, Dhirendra Kumar Singh, P.W.2
Pradip Kumar Pandey and P.W.3 Yogeshwar Nath Tiwary- all
offiicals of the D.R.I., Patna, and the team then conducted raid
at Room No.101 of Hotel Ashirward, Patna, on 20.02.2014 by
taking aid of Arvind Kumar and Sudhir Kumar- employees of
that hotel, as independent Panch witnesses.
(III). All three accused persons were found in Room
No.101 of that hotel holding one packet each, containing wet
brown powder which had tested positive for Heroin.
(IV). P.W.5 Aditya Ranjan prior to taking personal
search of all the three accused persons had given them option
(Exts.8 to 10) for complying the provisions of Section 50 of the
N.D.P.S. Act by informing the accused persons that on their
request search can be taken in presence of the Gazetted Officer
or the Magistrate.
(V). Packet held by accused no.1 Jamir was marked
as 'A' , that which was held by accused no.2 Furkan was marked
as 'B' and the packet held by accused no.3 Khalik was marked
as 'C', while conducting search at Hotel Ashirward, Patna.
(VI). In personal search of all accused persons,
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
sundry articles such as Railway Tickets, Chits, Blank cheques,
Driving License, mobile phones were found.
(VII). From Hotel Ashirward on 20.02.2014 itself,
all three accused persons and packet nos. 'A', 'B' and 'C' found
with them as well as other articles with them were taken to the
office of the D.R.I., Patna.
(VIII). On 20.02.2014 itself, weighment of the
packets found with all accused persons was conducted at the
offiece of the D.R.I., Patna. Packet 'A' found with accused
Jamir was weighing 615 grams, packet 'B' of Furkan was
weighing 613 grams and packet 'C' of Khalik was weighing 615
grams and total gross weight of all those three packets was
found to be 1.843 Kilograms.
(IX). At the office of the D.R.I., two samples each
weighing 5.00 grams were taken separately from the substance
found in packets 'A', 'B' and 'C'. Those samples were marked
as 'A-1 A-2' , 'B-1 B-2' and 'C-1 C-2'. Those samples were
separately kept in polythene pouches. The pouches were sealed
by tape and were kept in envelopes separately.
(X). Packets 'A', 'B' and 'C' containing remaining
substance weighing 605 grams, 603 grams and 605 grams
respectively were again sealed by tape.
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
(XI). Events which took place during search and
seizure of Heroin from accused persons, drawing samples from
the packets, sealing them after packing came to be recorded by
seizure Panchnama (Ext.3) which was prepared at Hotel
Ashirwad, Patna as well as the office of the D.R.I. Patna.
(XII). By preparing seizure memo (Ext.4) on
20.02.2014, P.W.5 Aditya Ranjan had seized Heroin in three
packets 'A', 'B' 'C' grossly weighing 1843 grams from all three
accused persons.
(XIII). Samples 'A-1', 'B-1' 'C-1' drawn from the
packets found in possession of the accused persons were sent
vide Test Memo (Exts.11/43) by P.W.5 Aditya Ranjan to the
Chemical Laboratory, Kolkata with a request to ascertain
whether the brown powder in the samples is Heroin or any other
drgus under the N.D.P.S. Act.
(XIV). Vide report dated 08.08.2014, the Chemical
Analyzer reported that on the basis of the chemical and
chromatographic examination it is inferred that each samples
answers positive tests for presence of Heroin, Morphine, 6-
Monoacetyl Morphine and Codeiane.
(XV). P.W.5 Aditya Ranjan vide Request Letter
(Ext.29) requested for certification of inventory to the Sessions
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
Judge, Patna and vide Certificate (Ext.30), the Judicial
Magistrate certified that he checked three packets marked 'A',
'B' and 'C' weighing 605 grams, 603 grams and 605 grams and
drew two samples from each packet 'A', 'B' and 'C'. Those
samples were packed and marked as 'A-3 A-4', 'B-3 B-4' and
'C-3, C-4' respectively. Samples in envelopes 'A-3' , 'B-3' and
'C-3' were handed over to the Inspector of Godown whereas
remaining three samples were retained for production before the
court by him.
(XVI) Samples drawn from packets marked as A, B
and C were produced before the learned trial Court and those
were proved through evidence of PW 5 Aditya Ranjan and were
marked as Exts. 31, 31/1 and 31/2.
(XVII). Accused No.1 Jamir Alam Ali made
confessional statement (Ext-1/3) under Section 67 of the
N.D.P.S. Act and admitted that seized Heroin was given to him
by Amir @ Javed Hussein for sale and he was to receive
commission of Rs.20,000/- per kilogram on sale of Heroin. He
admitted that he received an amount of Rs.7,000/- as advance.
(XVIII). Accused No.2 Md. Furkan in his
confessional statement under Section 67 of the N.D.P.S. Act
admitted that accused No.1 Jamir Alam Ali asked him to bring
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
Heroin to Patna and for this work he received an amount of
Rs.10,000/-. Accused No.2 Md. Furkan admitted that he
received Heroin weighing 1.800 Kg from a person named Amar
and he brought that Heroin to Patna on 20.02.2014.
(XIX). Accused No.3 Md. Khalik in his confessional
statement recorded under Section 67 of the N.D.P.S. Act
admitted that on earlier occasion he had delivered Heroin to Md.
Kadir, Md. Izhar etc. by bringing that Heroin from Jharkhand.
(XX). All accused persons in their confessional
statements have admitted that from their possession Heroin
came to be seized and that they accept their guilt.
(XXI). On 21.02.2014 report Ext-34, under Section
57 of the N.D.P.S. Act, regarding arrest and seizure of Heroin
was sent by PW 5 Aditya Ranjan to Superior Officer, i.e., the
Deputy Director, D.R.I., Patna.
14. Let us now deal with contention that due to
improper examination of the accused under Section 313 Cr.P.C.
as per the mandate of law, the appellants are entitled for
acquittal. It would be apposite to quote provision of Section
313 Cr.P.C. for better understanding of the issue. It reads thus:-
"313. Power to examine the accused.-
(1) In every inquiry or trial, for the purpose of
enabling the accused personally to explain any
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
circumstances appearing in the evidence against
him, the Court-
(a) may at any stage, without previously warning
the accused, put such questions to him as the Court
considers necessary;
(b) shall, after the witnesses for the prosecution
have been examined and before he is called on for
his defence, question him generally on the case:
Provided that in a summons- case, where the Court
has dispensed with the personal attendance of the
accused, it may also dispense with his examination
under clause (b).
(2) No oath shall be administered to the accused
when he is examined under sub- section (1).
(3)The accused shall not render himself liable to
punishment by refusing to answer such questions,
or by giving false answers to them.
(4) The answers given by the accused may betaken
into consideration in such inquiry or trial, and put
in evidence for or against him in any other inquiry
into, or trial for, any other offence which such
answers may tend to show he has committed."
15. Legislative provision enshrined in Section 313 of
the Cr.P.C. is based on the principle of natural justice described
in maxim 'audi alteram partem'- meaning thereby that nobody
should be condemned unheard. Principle of fair trial requires
that all incriminating circumstances appearing against the
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
accused must be put to him in order to afford him an
opportunity of explaining those circumstance. The trial Court is
duty bound to question the accused on the evidences and
circumstances appearing against him in order to enable the
accused to understand the exact case which he is required to
meet and whether or not to adduce any evidence in his defence.
The material which is not put to the accused is required to be
eschewed from consideration. At this stage, we may quote the
law laid down by the Hon'ble Apex Court in Sharad Birdhi
Chand Sarda Vs. State of Maharashtra (AIR 1984 SC 1662)
wherein it is held thus:
"As these circumstances were
not put to the Appellants in their
statement under Section 313 of the Code
of Criminal Procedure they must be
completely excluded from consideration
because the Appellants did not have any
chance to explain them. This has been
consistently held by this Court as far
back as 1953, wherein the case of Hata
Singh Bhagat Vs. State of Madhya
Bharat MANU/SC/0073/1951; AIR 1953
SC 468 this Court held that any
circumstances in respect of which an
accused was not examined under Section
342 of the Code of Criminal Procedure
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
cannot be used against him. Ever since
this decision there is a catena of
authorities of this Court uniformly taking
the view that unless the circumstances
appearing against an accused is put to
him in his examination under Section 342
of Section 313 of the Criminal Procedure
Code, the same cannot be used against
him... It is not necessary for us to
multiply authorities on this point as this
question now stands concluded by
several decisions of this Court in this
view of the matter the circumstances,
which were not put to the Appellant in his
examination under Section 313 of the
Code of Criminal Procedure have to be
completely excluded from
consideration."
(Emphasis is supplied by me)
Even in the case of State of
Maharashtra Vs. Sukdeo Singh and
Another (AIR 1992 SC 2100), their
Lordship have observed as follows-
"The trial Judge is not
expected, before he examined the
accused under Section 313 of the Code,
to sift the evidence regarding any
incriminating material to determine
whether or not to examine the accused as
that material. To do so, would be to
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
prejudice the evidence without hearing
the prosecution under Section 314 of the
Code. Therefore, no matter how weak or
scanty prosecution evidence is in regard
to certain incriminating material, it is the
duty of the Court to examine the accused
and seek his explanation thereon."
16. In Samsul Haque Vs. State of Assam (AIR 2019
SC 922), it is held thus in para-22 of their Lordships:-
"22. It is trite to say that, in
view of the judgments referred to by the
learned Senior Counsel, aforesaid, the
incriminating material is to be put to the
accused so that the accused gets a fair
chance to defend himself. This is in
recognition of the principles of audi
alteram partem. Apart from the
judgments referred to aforesaid by the
learned Senior Counsel, we may usefully
refer to the judgment of this Court in
Asraf Ali V. State of Assam reported in
2008 AIR SCW 5608, Para 13. The
relevant observations are in the
following paragraphs:
"21. Section 313 of the Code
casts a duty on the Court to put in an
enquiry or trial questions to the accused
for the purpose of enabling him to explain
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
any of the circumstances appearing in the
evidence against him. It follows as
necessary corollary therefrom that each
material circumstance appearing in the
evidence against the accused is required
to be put to him specifically, distinctly
and separately and failure to do so
amounts to a serious irregularity vitiating
trial, if it is shown that the accused was
prejudiced.
22. The object of Section 313 of
the Code is to establish a direct dialogue
between the Court and the accused. If a
point in the evidence is important against
the accused, and the conviction is
intended to be based upon it, it is right
and proper that the accused should be
questioned about the matter and be given
an opportunity of explaining it. Where no
specific question has been put by the trial
Court on an inculpatory material in the
prosecution evidence, it would vitiate the
trial. Of course, all these are subject to
rider whether they have caused
miscarriage of justice or prejudice. This
Court also expressed similar view in S.
Harnam Singh V. The State (AIR 1976 SC
2140), while dealing with Section 342 of
the Criminal Procedure Code, 1898
(corresponding to Section 313 of the
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
Code). Non-indication of inculpatory
material in its relevant facets by the trial
Court to the accused adds to vulnerability
of the prosecution case. Recording of a
statement of the accused under Section
313 is not a purposeless exercise."
17. In the matter of Jagat Prasad (Supra) the
Hon'ble Division Bench of this Court has taken a brief review
of the law on Section 313 of the Code of Criminal Procedure
and has held that the circumstances which were never put to the
accused in his examination under Section 313 Cr.P.C could not
have been used for his conviction and by giving benefit of
doubt, the accused came to be acquitted. It is necessary to quote
relevant paragraph Nos.68, 69, 70, 71, 74 and 75 which reads
thus:-
"68. The plain reading of
Section 313 of the Cr.P.C. would
demonstrate that the question under clause
(1)(a) is discretionary. It empowers the
court to put such questions to the accused
as the court considers necessary for the
purposes of enabling him personally to
explain any circumstances appearing in
the evidence against him at any stage
without previously warning. However,
clause (1)(b) empowers the court to
question the accused generally on the day
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
after the witnesses for the prosecution
have been examined and before he is
called upon for his defence. It casts a duty
on court to give an opportunity to the
accused to explain the incriminating
material against him.
69. In State of U.P. Vs.
Mohd. Iqram & Anr, since reported in
AIR 2011 SC 2296, the Supreme Court
held :
"Attention of the accused must
specifically be drawn to inculpatory pieces
of evidence to give him an opportunity to
offer an explanation if he chooses to do so.
Court is under legal obligation to put all
incriminating circumstances before
accused to solicit his response. This
provision is mandatory in nature and casts
an imperative duty on the court and
confers a corresponding right on the
accused. Circumstances not put to the
accused in his examination under section
313, cannot be used against him."
70. In Naval Kishore Vs.
State of Bihar, since reported in (2004) 7
SCC 502, the Supreme Court observed that
the opportunity of examination under
section 313 given to the accused is part of
a fair trial and if it is done in a slipshod
manner, it may result in imperfect
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
appreciation of evidence. In the said case,
the Supreme Court further observed that
the practice of putting the entire evidence
against the accused in a single question
and giving an opportunity to explain the
same is improper as the accused may not
be in a position to give a rational and
intelligent explanation.
71. It is well settled that the
object of Section 313 of the Code is to
enable the accused to explain the
circumstances against him in the evidence
personally except where the statute
provides otherwise.
74. In my view, since no
question was asked from the appellant on
the circumstances referred to in the
aforesaid paragraph, he did not have any
chance to explain those circumstances. The
circumstances which were never put to the
appellant while examining him under
Section 313 of the Cr.P.C. could not have
been used for his conviction. Though there
was no evidence that the appellant was
transporting the narcotic substance in
connivance with the drug peddlers from
Indo-Nepal border which was being
financed by Raj Kumar, the Trial Court put
the said question to the appellant.
Surprisingly, the circumstances put forth
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
by the witnesses in their testimonies were
not brought to the notice of the appellant
and the circumstances which have not been
led in evidence were put to him while
examining him under Section 313 of the
Cr.P.C.
75. Thus, on appreciation of the
entire evidence, I am of the opinion that
there are serious infirmities in the
prosecution evidence. Hence, the judgment
of conviction and the consequent order of
sentence passed by the Trial Court cannot
be sustained."
18. If translated freely in English, statement of the
accused under Section 313 Cr.P.C. is as under with common
answers given by all the three accused to question Nos.1 to 4
and their different answers to question No.5.
Question No.1: Have you heard the evidence
adduced by witnesses?
Ans: Yes.
Question No.2: You are charged and it is in
evidence that you on 20.02.2014 at Room
No.101 of Ashirwad Hotel, Station Road, Patna,
was doing the sale and purchase of Heroin.
Ans: No.
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
Question No.3: You are charged and it is in
evidence that when on the basis of secret
information, raiding team reached Room
No.101 of Hotel Ashirwad, you were seen
holding a packet in your hand and sitting on the
bed which was containing a substance like
Heroin on testing by departmental kit and the
total weight of which was 1843 grams and price
rupees 11 lacs?
Ans: No.
Question No.4: You are charged and it is in
evidence that all legal action under NDPS Act
was taken in respect of seized article?
Ans: No.
Question No.5: What have you to say in your
defence?
Ans of Accused No.1 Jamir Alam Ali - I am
innocent. Falsely implicated. There was
quarrel with Officer of the DRI who was in civil
dress. Hence, I am falsely implicated.
Ans of Accused No.2 Md. Furkan - I am
innocent. I am falsely implicated and sent in
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
Jail by the DRI.
Ans of Accused No.3 Md. Khalik- I am
innocent. Falsely implicated.
19. Perusal of statements of all accused persons
recorded under Section 313 of the Cr.P.C. by examining them by
the learned trial Court makes it clear that not a single
incriminating circumstance appearing in evidence adduced by
the prosecution was put to any of the accused persons. Cryptic
and misguiding questions seems to be put to the accused and as
seen from the record of their examination under Section 313
Cr.P.C., the learned trial Judge has not even formally asked
them as to what they have to say about the circumstance pointed
out in such question. Question No.3 which was put up to the
accused persons seems to be totally misconceived and
misguiding the accused. According to the prosecution case,
which is held to be proved by the learned trial Court. Accused
No.1 Jamir was holding a packet marked 'A' which was
containing 615 gms of Heroin, accused No.2 Furkan was
holding a packet marked 'B' containing 613 gms of Heroin
whereas accused No.3 Khalik was holding a packet marked 'C'
containing 615 gms of Heroin. Evidence adduced by the
prosecution was to the effect that when wet brown powder in
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
all those three packets which were individually held by three
accused persons was subjected to test by using the Field Testing
Kit, the same was found to be Heroin. This is categorically
stated by the prosecution witnesses and is also reflected from
the Punchnama of events happened during the raid which is at
Ext-3. When the learned trial Court, on the basis of this
evidence as well as on the basis of report of chemical analyzer
has held that the seized substance was Heroin, a manufactured
drug, and possession thereof is the offence punishable under
Section 21(c) of the N.D.P.S. Act, it was incumbent on the part
of the learned trial Judge to put these circumstances by separate
questions to the accused persons in their statements under
Section 313 of the Cr.P.C. and that they ought to have been
informed that they were found to be possessing Heroin. By
framing proper intelligible short and simple questions they
ought to have been given an opportunity to explain their stand.
However, what was asked to them is to the effect that they were
possessing a packet containing a substance like Heroin weighing
1843 grams. Though all the three accused persons were
allegedly holding the packets A, B and C individually
containing 615 gms, 613 gms and 615 gms of Heroin, in
complex question No.3 they were informed that individually
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
each of them was holding a packet in his hand containing a
substance like Heroin weighing 1843 gms. They were not even
specifically questioned about actually possessing Heroin by
them in order to enable them to give their explanation in that
regard during the course of their examination under Section 313
of the Cr.P.C. They were informed that they were possessing
substance like Heroin. When accused No.1 Md. Jamir,
according to the evidence adduced by the prosecution, was
holding a packet marked 'A' containing 615 gms when accused
No.2 Md. Furkan was holding a packet marked 'B' containing
613 gms of Heroin and when accused No.3 md. Khalik was
holding a packet containing 615 gms of Heroin, asking each of
them to explain their individual possession over 1483 gms of a
substance like Heroin in a packet held by each of them
individually is certainly misguiding the accused and preventing
them from submitting their explanation to the incriminating
evidence appearing against them in the trial. The prejudice
caused to each of the accused by wrongly framed misguiding
question No.3 is writ large from the record. It is really
surprising that the accused were not even informed by the
learned trial Court that as per the report of the C.A., they were
actually found in possession of Heroin and as such, they were
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
virtually prevented from giving explanation to the evidence
adduced by the prosecution which was ultimately used for
convicting all of them for serious offences.
20. It is thus clear that circumstances Nos.I to XXI
which were appearing in oral as well as documentary evidence
against the accused persons and which were actually pressed in
service to record conviction and resultant sentence were not put
to the accused persons by framing simple questions regarding
each and every individual circumstances for seeking
explanation of the accused persons on such evidence appearing
against them. As these circumstances were not put to them, the
accused persons did not have any chance to explain those
circumstances and to understand case of the prosecution against
them. Perusal of the questions put to the accused persons in their
examination under Section 313 Cr.P.C. by the learned trial Court
makes it clear that the learned trial Court had deprived the
accused persons of the fair trial by abdicating its duty to put
each and every incriminating circumstance separately to the
accused for giving him fair opportunity to tender their
explanation regarding the same. Rather by framing and putting
question No.4 to the effect that all legal action under N.D.P.S.
Act was taken in respect of the seized articles, the learned trial
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
Court had virtually put the entire evidence against the accused
in such a cryptic single question, when at least there are XXI
incriminating circumstances appearing against the accused
persons in the oral as well as documentary evidence tendered by
the prosecution. The learned trial Court as such has failed to
comply its statutory duty as envisaged by mandate of Section
313 Cr.P.C., by indulging in examining the accused persons in
most casual and careless manner and thereby depriving them of
an opportunity to explain the circumstances against them
appearing in evidence, personally. It is seen that the accused
persons, as such, could not understood the case of the
prosecution and the oral evidence adduced by the prosecution
witnesses so also the documentary evidence in the form of the
report of the chemical analysis which was to the effect that the
seized substance is Heroin. The accused as such cannot be
said to be in a position to give rational and intelligent
explanation to the circumstances appearing in evidence adduced
by the prosecution. If the circumstances No.I to XXI culled out
by this Court in foregoing paragraph from the evidence
adduced by the prosecution are, therefore, eschewed from
consideration as those were not put to any of the accused
persons, then there remains no evidence to connect the accused
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
persons to the crime in question.
21. We have carefully perused the judgment in the
matter of Dharmpal Singh (Supra), wherein it is held thus in
paragraph-12:
".....As part of fair trial, Section 313 of the
Code of Criminal Procedure requires giving
opportunity to the accused to give his
explanation regarding the circumstance
appearing against him in the evidence
adduced by the prosecution. The purpose
behind it is to enable the accused to explain
those circumstances. It is not necessary to
put entire prosecution evidence and elicit
answer but only those circumstances which
are adverse to the accused and his
explanation would help the Court in
evaluating the evidence properly. The
circumstances are to be put and not the
conclusion. It is not an idle formality and
questioning must be fair and couched in a
form intelligible to the accused. But it does
not follow that omission will necessarily
vitiate the trial. The trial would be vitiated on
this score only when on fact it is found that it
had occasioned a failure of justice."
We have already put on record the incriminating
circumstances appearing against all accused persons in the oral
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
as well as documentary evidence adduced by the prosecution.
We have also reproduced the entire text of the examination of
the accused persons under Section 313 of the Code of Criminal
Procedure conducted by the learned trial Court. We have also
noted down that not a single incriminating circumstance was
put to any of the accused persons while examining them under
Section 313 of the Code of Criminal Procedure by the learned
trial Court. They were even not specifically informed that the
substance which were found in their possession was Heroin- a
manufactured drug inviting penal consequences under the
N.D.P.S. Act. Misguiding question was put to the accused
persons by stating that they were possessing a substance like
Heroin. They were even misguided about the weight of the
substance allegedly found in possession of each of them by
putting incorrect question to them in a slipshod manner by the
learned trial Court. Without putting any of the circumstance
appearing against the accused persons to them while examining
them under Section 313 of the Cr.P.C., the learned trial Court
was pleased to convict them of serious offences punishable
under Sections 21(c), 27A and 29 of the N.D.P.S. Act.
Complete go bye was given to the mandatory provision of
Section 313 of the Cr.P.C. by the learned trial Court. In such
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
circumstances, nothing more is required to demonstrate failure
and miscarriage of justice and that too due to failure of duty by
the learned trial Court.
22. Perusal of the impugned judgment makes it clear
that the learned trial Court relied on confession of all accused
persons in the light of provisions of Section 67 of the N.D.P.S.
Act. The learned trial Court categorically held in the impugned
judgment of conviction that the accused persons have admitted
their guilt and have also admitted that Heroin was seized from
them. The learned trial Court further observed that accused No.1
and accused No.2 brought Heroin weighing 1.8 Kg to Patna on
the basis of their confessional statements. Confessional
statement of the accused persons (Exts.13 to 15) were relied by
the learned trial Court for holding that they were indulging in
possession, sale, purchase and import as well as export of the
Heroin. On the basis of their confessional statements, offences
punishable under Sections 21(c), 27A and 29 of the N.D.P.S. Act
were held to be proved against them. However, these
confessional statements of the accused Exts-13 to 15 and their
alleged version found therein was never put to any of the
accused persons in their examination under Section 313 of the
Cr.P.C. for seeking their explanation. Without bringing the
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
confessional statements relied by the prosecution to their notice,
those were used against the accused persons for convicting them
of serious offences.
23. It is needless to mention here that as per the law
laid down by the Hon'ble Apex Court in the matter of Tofan
Singh Vs. State of Tamilnadu reported in (2021) 4 SCC 1, the
confessional statement made under Section 67 of the N.D.P.S.
Act before an Intelligence Officer of the D.R.I. would not be
admissible in law for recording conviction against the accused
persons. It is held in the said matter that the Officers, who are
invested with the power under Section 53 of the N.D.P.S. Act
are "Police Officers" within the meaning of Section 25 of the
Evidence Act and, therefore, any confessional statement made
before such Officers would attract the bar of Section 25 of the
Evidence Act and cannot be taken into consideration for
recording conviction against the accused. Thus, confessional
statement of the accused persons at Exts. 13 to 15 could not
have been taken into consideration for holding that the offences
alleged against the accused persons are proved.
24. Whenever material circumstances are not put to
the accused in order to enable him to explain the incriminating
evidence appearing against him, the following course of action
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
is available to the appellate Court.
(A). Whenever a plea of non-compliance of
Section 313 Code of Criminal Procedure is
raised, it is within the powers of the appellate
court to examine and further examine the
convict or the counsel appearing for the accused
and the said answers shall be taken into
consideration for deciding the matter. If the
accused is unable to offer the appellate Court
any reasonable explanation of such
circumstance, the Court may assume that the
accused has no acceptable explanation to offer.
(B). In the facts and circumstances of the case, if
the appellate Court comes to the condition that
no prejudice was caused or no failure of justice
was occasioned, the appellate Court can hear
and decide the matter upon merits.
(C). If the appellate Court is of the opinion that
non-compliance with the provisions of Section
313 of the Code of Criminal Procedure has
occasioned or is likely to have occasioned
prejudice to the accused, the appellate Court
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
may direct retrial from the stage of recording the
statements of the accused from the point where
the irregularity occurred, that is, from the stage
of questioning the accused under Section 313 of
the Code of Criminal Procedure and the trial
Judge can be directed to examine the accused
afresh and defence witness if any and dispose of
the matter afresh.
(D). The appellate Court may decline to remit
the matter to the trial Court for retrial on account
of long time time already spent in the trial of the
case and the period of sentence already
undergone by the convict and in the facts and
circumstances of the case may decide the appeal
on its own merits, keeping in view the prejudice
caused to the accused.
25. In the case in hand, all the accused
persons/appellants are behind bars from 20.02.2014, i.e., more
than eight years. They were deprived of fair trial. Even these
appeals are of the year 2016. Considering the facts situation of
the instant case wherein examination of the accused persons was
done in most casual and perfunctory manner without putting the
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
single circumstance appearing against them to the accused
persons, we are of the considered opinion that the accused
cannot be made to suffer for leches and omission on the part of
the trial Court, by remand of the case for appropriate
examination of the accused persons under Section 313 of the
Code of Criminal Procedure. We deem it not proper to exercise
such powers by ourselves in the light of the fact that the accused
persons have already undergone sentence of more than eight
years. In somewhat similar situation in the case of Machander
V. State of Haryana (AIR 1955 SC 792), the Hon'ble Apex
Court considered it inappropriate to remand the case for
examination of the accused when a period of four and half years
had passed.
26. As seen by evidence adduced by the prosecution,
the search and seizure of the Heroin was conducted on
20.02.2014. Samples A/1 A/2, B/1 B/2 and C/1 C/2 were also
drawn from the bulk on 20.02.2014 itself. However, Test
Memos signed by PW 5 Aditya Ranjan, forwarding samples A-
1, B-1 and C-1 to the Chemical Laboratory is not bearing the
date of sending those samples. Evidence adduced by the
prosecution witnesses is conspicuously silent about the date on
which those samples were sent to the Chemical Laboratory. The
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
prosecution has not adduced any evidence regarding keeping
those samples in the safe custody till they were forwarded to the
Chemical Laboratory and that they were sent and received in the
sealed condition at the Chemical Laboratory. It is seen on the
undated Test Memo signed by PW 5 Aditya Ranjan, there is an
endorsement of the Chemical Laboratory that weighment of the
samples was done on 25.02.2014. Thus, it was incumbent on
the prosecution to demonstrate that the samples were in safe
custody with seals intact upto 25.02.2014. No such evidence is
forthcoming, on the contrary, evidence of PW 4 Anubhav
Kumar, the Intelligence Officer shows that there is no Malkhana
in the Office of the D.R.I. Patna. He had candidly stated before
the Court that he is not aware as to with whom the samples were
from 20.02.2014 to 22.02.2014. Thus, possibility of tampering
the samples during this period cannot be ruled out.
27. We note for rejection the argument of the learned
counsel for the appellants that neither the bulk nor samples of
the seized material were produced before the learned trial Court.
Evidence of PW 5 Aditya Ranjan is clear on this aspect.
Samples drawn from the seized substance were very much
before the learned trial Court vide Exts. 31, 31/1 and 31/2. In
this view of the matter, judgment in the matter of Premsingh
Patna High Court CR. APP (DB) No.1139 of 2016 dt.06-05-2022
Jaiswal (Supra) is of no consequence.
28. Thus, the appeals deserve to be allowed by
holding that the appellants are entitled to get the benefit of
doubt for the reasons stated in the foregoing para and as such,
the order:-
(I). The appeals are allowed.
(ii). The impugned judgment of conviction dated
15.09.2016 and the resultant order of sentence dated 21.09.2016
passed by the learned Additional Sessions Judge-VII, Patna, in
Special Case No.15 of 2014 between the parties is quashed and
set aside. The appellants/accused are acquitted of the charges
levelled against them. They are directed to be set at liberty
forthwith unless their detention is required in any other case.
Fine amount, if any, paid by them be refunded to them.
(A. M. Badar, J)
( Sunil Kumar Panwar, J)
P.S./MKr/-
AFR/NAFR AFR
CAV DATE 11.04.2022
Uploading Date 06.05.2022
Transmission Date 06.05.2022
