Sikindar Prasad Yadav @ Sikandar ... vs The Union Of India Through Binod ...
2023 Latest Caselaw 3400 Patna

      IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.534 of 2022
  Arising Out of PS. Case No.-88 Year-2017 Thana- GOVERNMENT OFFICIAL COMP.
                                District- East Champaran
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Sikindar Prasad Yadav @ Sikandar Prasad Yadav Son Of Mochan Prasad Yadav @ Mochan Ray R/O Village- Kutcharia Tola, Bijboni, P.O.- Bankatwa, P.S.- Jitna (GHORASAHAN), Distt.- East Champaran, Bihar

... ... Appellant/s Versus The Union Of India Through Binod Kumar Das, Inspector, Land Customs Station, Raxaul Distt.- East Champaran, Bihar

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

For the Appellant : Mr. Vikash Kumar Pankah, Advocate Mr. Pratiyush Kumar, Advocate For the UOI : Mr. Ramakant Sharma, Sr. Advocate Mr. Akshay Ashish, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE NAWNEET KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 01-08-2023

This appeal has been preferred by the appellant under

Section 374(2) of the Code of Criminal Procedure, putting to

challenge a judgment of conviction dated 18.07.2019 and an order

of sentence dated 19.07.2019, passed by learned Sessions Judge-

cum-Special Judge, East Champaran at Motihari in NDPS Case

No. 39 of 2017 arising out of C.No.

VIII(10)13/CUS/Seiz/NDPS/RXL/17/88 dated 08.04.2017,

whereby the appellant has been convicted and sentenced as under: Patna High Court CR. APP (DB) No.534 of 2022 dt.01-08-2023

Cr. Appeal (DB) No. 534 of 2022 Sentence Conviction under Appellant In default of Section Imprisonment Fine (Rs.) fine Sikindar 20(b)(ii) (C) of NDPS Act R.I. for 12 years 1,50,000/- S.I for six months Prasad Yadav 23(c) of NDPS Act R.I. for 12 years 1,50,000/- S.I for six months @ Sikandar Prasad Yadav

2. All the sentences have been ordered to run

concurrently.

3. An Inspector posted at Land Customs Station, Raxaul,

Binod Kumar Das (PW-2) filed a complaint petition in the Court

of learned Sessions Judge-cum-Special Judge, NDPS, Motihari on

19.07.2017 (Exhibit-14) giving rise to the concerned NDPS Case

No. 39 of 2017. The prosecution's story has been elaborately

narrated in the said complaint petition. It is the prosecution's case

that an information was received on 07.04.2017, that a person was

carrying charas from a place Sirasiya (Nepal), for being handed

over to someone at Raxaul Bus Stand, East Champaran Via-

Kaurihar Chowk, Raxaul. The apparels which the person would be

wearing while carrying the said contraband was also indicated in

the secret information. A team was accordingly constituted for

intercepting the said person and an intimation was sent in this

regard to the Superintendent (Preventive) LCS, Raxaul. The team

so constituted rushed towards the indicated place at 3:00 pm, and Patna High Court CR. APP (DB) No.534 of 2022 dt.01-08-2023

after waiting for a while, the person was spotted. He was signaled

to stop, who was found to be carrying a black air-bag. The said

person was asked to open his black air-bag in the presence of two

independent witnesses (no independent witness was examined at

the trial). Upon opening of the bag, some packets wrapped with

brown coloured plastic adhesive tapes were found. On enquiry, the

person disclosed his name as Sikandar Prasad Yadav (appellant)

and told the custom officials that he was carrying charas which he

had received from one Tapelal Sah of Sirasiya (Nepal), to be

delivered to a person near the bus stand, to be found in a red shirt.

Despite efforts made, the persons to whom the charas was

intended to be handed over by the appellant could not be located

by the DRI officials. It is further case that the appellant, his bag

and both the independent witnesses were brought to LCS, Raxaul

for further formalities. After arriving at the office, a personal

search of the appellant was conducted in the presence of the

Superintendent (Preventive) LCS, Raxaul and the said two

independent witnesses, after obtaining the appellant's consent to

be searched before a Departmental Gazetted Officer. No

incriminating material/document was recovered on personal search

of the appellant. The bag was opened in his presence. A total of 17

packets of charas in rectangular shape were recovered from the Patna High Court CR. APP (DB) No.534 of 2022 dt.01-08-2023

said bag. The charas was weighed in the presence of the appellant

and both the witnesses which was found to be 8.450 kgs (net). A

seizure memo was thereafter prepared and the recovered charas,

weighing 8.450 kgs, was seized on 07.04.2017 under Section 43 of

the NDPS Act at 8:00 pm for violation of Section 8 of the NDPS

Act. A copy of the seizure memo was handed over to this appellant

also. Thereafter small quantities of charas from each of all the 17

packets were taken and mixed together and three representative

samples (weighing approximately 25 gram each) were drawn from

the mixed charas and kept in three separate small transparent

plastic pouches. The said pouches were kept in three separate

plastic coated envelopes in the presence of the appellant and two

independent witnesses, which were sealed for sending them to the

Joint Director, Chemical Laboratory, Customs House, Kolkata for

chemical examination. The interrogatory statement of the appellant

was recorded under Section 67 of the NDPS Act, wherein he

confessed his culpability by saying that he was carrying 17 packets

of charas which he had received from Tapelal Sah of Sirasiya

(Nepal) for carrying the same to bus stand, Raxaul to be delivered

to a person wearing a red shirt. He confessed that he was doing so

under the allurement of payment of a sum of Rs. 2,000/-. Patna High Court CR. APP (DB) No.534 of 2022 dt.01-08-2023

4. On a reasonable belief that the appellant had

smuggled charas from Sirasiya (Nepal) Via- Kaurihar Chowk

Raxaul and thereby breached the provision of Section 8 of the

NDPS Act and, therefore, liable to punishment for the offences

punishable under Sections 20, 23 and 24 of the NDPS Act, he was

arrested on 08.04.2017 at 11:00 am, in exercise of power under

Section 43 of the NDPS Act. He was produced before the court of

learned District and Sessions Judge, Civil Court, Motihari on

08.04.2017 and was remanded to the judicial custody under the

court's order.

5. As has been noted hereinabove, according to the

prosecution's case, three samples were drawn by the custom

officials themselves at the LCS office, Raxaul itself. One of them

was sent for chemical examination to the Joint Director, Chemical

Laboratory Custom House, Kolkata on 08.04.2017.

6. Before referring to subsequent facts mentioned in the

said complaint petition, we consider it apposite to mention from

the ordersheet of the court below that on 08.04.2017, after

producing the appellant before the court of learned Special Judge,

Motihari, an application was made seeking permission to send the

samples marked as S-1 to CRCL, Kolkata and to keep the sample

marked as S-2 and S-3 in the custody of Malkhana at Customs Patna High Court CR. APP (DB) No.534 of 2022 dt.01-08-2023

House, Raxaul. The prayer was allowed and the Investigating

Officer was directed to submit the articles to the Authority.

7. It is evident from the complaint petition itself as well

as the ordersheet of the trial court dated 08.04.2017, that the

samples were not drawn in the presence of a Magistrate as

contemplated under Section 52A (2) (b) of the NDPS Act and the

directions issued by the Supreme Court in the case of Union of

India v. Mohanlal reported in (2016) 3 SCC 379.

8. Be that as it may, according to the prosecution's case

a report dated 13.07.2017, was received from the office of Chief

Chemical Examiner, Chemical Laboratory Custom House, Kolkata

to the following effect:-

" The sample is in the form of blackish brown sticky material. It responds to the tests for resinous extract of plant cannabis sativa (charas)."

9. The remnant sample of charas returned with colorless

transparent plastic pouch in sealed condition with facsimile of seal

"CHEMICAL EXAMINER CAL CUS HOUSE No. 1" was

deposited in the godown of customs, LCS, Raxaul.

10. With the accusation as noted-above, the complaint

petition was filed on 19.07.2017, whereupon cognizance was taken

and the appellant came to be charged for commission of the Patna High Court CR. APP (DB) No.534 of 2022 dt.01-08-2023

offences punishable under Sections 20(b)(ii)(C) and 23(c) of the

NDPS Act read with Section 8 thereof.

11. At the trial the prosecution examined altogether 9

witnesses as under:-

Ram Karan Safi (PW-1), Custom Superintendent, who

had supervised the seizure formalities, Binod Kumar Das (PW-2)

the seizing officer and the complainant, Vijay Kumar Paswan

(PW-3) a member of the raiding team, Bharat Kumar (PW-4),

Custom Superintendent, who had apprehended the appellant and

assisted in completing the seizure formalities, Sanjeev Kumar Jha

(PW-5), Custom Superintendent, who had also participated in

apprehending the appellant and assisting in completing the seizure

formalities, Shashi Bhusan Singh (PW-6), Custom Inspector, who

had apprehended the appellant and assisted in completion of

seizure formalities, Mahboob Alam (PW-7), Custom

Superintendent, who had assisted in completing the seizure

formalities, Abhishek Kamal (PW-8), Custom Inspector, who was

a member of the team, had apprehended the appellant and had

assisted in completion of seizure formalities, Arun Nayan Prasad

(PW-9), a formal witness, who proved certification papers for

disposal of the seized contraband.

Patna High Court CR. APP (DB) No.534 of 2022 dt.01-08-2023

12. Apart from the oral evidence, the prosecution

adduced following documentary evidence at the trial to

substantiate the charge against the appellant:-

        Sl. No. Exhibits   Details
        1.      Ext-1      Jama Talashi Vivarani
        2.      Ext-2      Notice U/S 50 of N.D.P.S. Act
        3.      Ext-3      Seizure Memo
        4.      Ext-4      Panchnama
        5.      Ext-5      Forwarding report to Joint Director, Chemical Laboratory,

Customs House, 15/1, Strand Road, Kolkata

6. Ext-6 Forensic Science Laboratory Report

7. Ext-7 Summons u/s 67 of the N.D.P.S. Act

8. Ext-7/1 Summons u/s 67 of the N.D.P.S. Act

9. Ext-8 Interrogatory statement of the accused Sikindar Prasad Yadav

10. Ext-9 Signature of P.W.2-Binod Kumar Dason Notice U/s 50 of N.D.P.S. Act

11. Ext-10 Weighing Chart

12. Ext-11 Voluntarily statement of accused Sikindar Prasad Yadav.

        13.     Ext-12     Arrest Memo
        14.     Ext-13     Photograph of accused Sikindar Prasad Yadav
        15.     Ext-14     Official Complaint Petition
        16.     Ext-15     Certificate for destruction of seized goods
        17.     Ext-16     List of N.D.P.S. cases ripe for destruction in LCS, Raxaul.

13. After closure of the prosecution's evidence the trial

court questioned the appellant under Section 313 of the CrPC,

referring to the evidence adduced at the trial on behalf of the

prosecution, so as to give him an opportunity to explain the

circumstances emerging against him based on the prosecution's

evidence. The appellant denied the accusation of recovery of any Patna High Court CR. APP (DB) No.534 of 2022 dt.01-08-2023

contraband article from him and thus, he answered all the

questions in negative.

14. The trial court, after having appreciated the evidence

adduced at the trial reached a conclusion that the prosecution was

able to prove the charge of commission of the offences punishable

under Sections 20 (b) (ii) (C) and 23 (c) of the NDPS Act and

sentenced him to imprisonment and fine as has been noted above.

15. Learned counsel appearing on behalf of the appellant

has submitted that the finding of conviction recorded by the trial

court is not at all sustainable for the reason that the entire

prosecution's case is based on the chemical examination of the

samples sent by the custom officials to CRCL, Kolkata. It is a

mandatory requirement under Section 52A(2)(b) of the NDPS Act

as explained by the Supreme Court in the case of Mohanlal

(supra) that soon after seizure is made, an application ought to

have been made before the learned Special Judge for deputation of

a Magistrate to supervise drawing of the samples. In the present

case, this being an admitted fact that the samples were not drawn

in the presence of the Magistrate, the entire case of the prosecution

stands vitiated. He further submits that according to the

prosecution's case, all the formalities of search and seizure were

done in the presence of two independent witnesses, namely, Patna High Court CR. APP (DB) No.534 of 2022 dt.01-08-2023

Munilal Patel and Gauri Prasad. None of them were, however,

examined at the trial which renders the entire search and seizure

doubtful. He contends that in view of the decision of the Supreme

Court in the case of Tofan Singh v. State of Tamil Nadu reported

in (2021) 4 SCC 1, the statement of an accused recorded by a

custom official under Section 67 of the NDPS Act, is not

admissible in evidence. It has also been submitted that none of the

samples which were drawn, according to the prosecution's case,

after seizure of the contraband from the possession of the appellant

were produced as material exhibits at the trial, which is a major

lacuna and for this reason also the finding of conviction cannot be

sustained.

16. Mr. Ramakant Sharma, learned senior counsel

appearing on behalf of the Union of India has submitted that the

custom officials followed due procedure while conducting the

search after giving the appellant a choice to be searched either

before Gazetted Officer or before a Magistrate. Once he gave a

written consent to be searched before a Gazetted Officer, the

search was conducted leading to recovery of contraband article

from his possession in presence of the seizure list witnesses. He

has submitted that the evidence of the witnesses may not be

totally discarded only because they are custom officials as there is Patna High Court CR. APP (DB) No.534 of 2022 dt.01-08-2023

no reason to disbelieve their evidence. He has submitted that upon

chemical examination, the substance recovered from the

appellant's conscious possession has been found to be charas and

in that background the trial court, after having noticed the

evidence of the prosecution's witnesses has rightly recorded the

conviction, which does not require any interference by this Court.

17. We have gone through the impugned judgment and

order of the trial court and we have carefully analyzed the

evidence adduced at the trial. We do not find any dispute over the

fact that the sample was not drawn in the presence of a Magistrate.

18. The Supreme Court in case of Mohanlal (supra)

decided on 28.01.2016 construing the provision under Section 52A

of the NDPS Act has held in paragraph Nos. 15 and 16 as under:-

"...15. It is manifest from Section 52-A(2)(c) (supra) that upon seizure of the contraband the same

has to be forwarded either to the officer-in-charge of the

nearest police station or to the officer empowered under

Section 53 who shall prepare an inventory as stipulated

in the said provision and make an application to the

Magistrate for purposes of (a) certifying the correctness

of the inventory, (b) certifying photographs of such drugs

or substances taken before the Magistrate as true, and

(c) to draw representative samples in the presence of the

Magistrate and certifying the correctness of the list of

samples so drawn.

Patna High Court CR. APP (DB) No.534 of 2022 dt.01-08-2023

16. Sub-section (3) of Section 52-A requires

that the Magistrate shall as soon as may be allow the

application. This implies that no sooner the seizure is

effected and the contraband forwarded to the officer-in-

charge of the police station or the officer empowered, the

officer concerned is in law duty-bound to approach the

Magistrate for the purposes mentioned above including

grant of permission to draw representative samples in

his presence, which samples will then be enlisted and the

correctness of the list of samples so drawn certified by

the Magistrate. In other words, the process of drawing of

samples has to be in the presence and under the

supervision of the Magistrate and the entire exercise has

to be certified by him to be correct..."

19. Further while summing up the issues relating to

seizure, sampling and safe storage of the contraband articles under

the NDPS Act issued following directions:-

"...31. To sum up we direct as under:

31.1. No sooner the seizure of any

narcotic drugs and psychotropic and controlled

substances and conveyances is effected, the same

shall be forwarded to the officer in charge of the

nearest police station or to the officer empowered

under Section 53 of the Act. The officer concerned

shall then approach the Magistrate with an

application under Section 52-A(2) of the Act, which

shall be allowed by the Magistrate as soon as may be

required under sub-section (3) of Section 52-A, as

discussed by us in the body of this judgment under

the heading "seizure and sampling". The sampling

shall be done under the supervision of the Patna High Court CR. APP (DB) No.534 of 2022 dt.01-08-2023

Magistrate as discussed in Paras 15 to 19 of this

order.

31.2. The Central Government and its

agencies and so also the State Governments shall within

six months from today take appropriate steps to set up

storage facilities for the exclusive storage of seized

narcotic drugs and psychotropic and controlled

substances and conveyances duly equipped with vaults

and double-locking system to prevent theft, pilferage or

replacement of the seized drugs. The Central Government

and the State Governments shall also designate an

officer each for their respective storage facility and

provide for other steps, measures as stipulated in

Standing Order No. 1 of 1989 to ensure proper security

against theft, pilferage or replacement of the seized

drugs.

31.3. The Central Government and the State

Governments shall be free to set up a storage facility for

each district in the States and depending upon the extent

of seizure and store required, one storage facility for

more than one districts.

31.4. Disposal of the seized drugs currently

lying in the Police Malkhanas and other places used for

storage shall be carried out by the DDCs concerned in

terms of the directions issued by us in the body of this

judgment under the heading "disposal of drugs..."

20. Evidently, the prosecution has not followed the

mandatory safeguard stipulated under Section 52A(2)(b) of the

NDPS Act and the law laid down in this regard by the Supreme

Court in case of Mohanlal (supra).

Patna High Court CR. APP (DB) No.534 of 2022 dt.01-08-2023

21. Secondly, it is evident from an order passed by the

court on 08.04.2017 on an application made by the Investigating

Officer that the court had permitted to keep the remaining two

samples, said to have been drawn, namely, S-2 and S-3 in the

custody of Malkhana at customs, Raxual. These samples were not

produced as material exhibits at the trial.

22. Thirdly, the independent seizure list witnesses, who,

according to the prosecution's case, had witnessed the entire

exercise right from the apprehension of the appellant till the

samples were drawn were not examined. We do not find any

explanation on record as to why they could not be examined. With

these facts, we are of the view that it would be safe for us to

uphold the conviction of the appellant based only on the evidence

of the custom's officials.

23. We are of the view that failure on the part of the

prosecution to draw samples in the presence of a Magistrate was a

major lacuna. The prosecution failed to adhere to one of the

important safeguards under Section 52A(2)(b) of the NDPS Act.

Situated thus, we are of the view that the prosecution cannot be

said to have proved the charge against the appellant beyond all

reasonable doubt.

Patna High Court CR. APP (DB) No.534 of 2022 dt.01-08-2023

24. Accordingly, the appellant stands acquitted of the

charge of offence punishable under Sections 20(b)(ii)(C) and 23(c)

of the NDPS Act. The impugned judgment of conviction recorded

by the trial court dated 18.07.2019 is hereby set aside. The order of

sentence dated 19.07.2017 is also set aside.

25. This appeal is allowed.

26. The appellant is in custody. Let him be released from

jail forthwith, if not required in any other case.

(Chakradhari Sharan Singh, J)

(Nawneet Kumar Pandey, J)

Nishant/Nirmal-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          07.08.2023
Transmission Date       07.08.2023