Md. Mojamil vs The State Of Bihar
2023 Latest Caselaw 3447 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.489 of 2018
    Arising Out of PS. Case No.-7 Year-2014 Thana- MOTIHARI TOWN District- East
                                       Champaran
======================================================

Md. Mojamil Son of Noor Mohammad, Resident of Village- Masahi, P.S.- Chhauradano, Dist- East Champaran.

... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 277 of 2018 Arising Out of PS. Case No.-7 Year-2014 Thana- MOTIHARI TOWN District- East Champaran ====================================================== Jabiullah S/o Sheikh Majid, R/o Village- Masahi, P.S.- Chhoradano, District- East Champaran.

... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 471 of 2018 Arising Out of PS. Case No.-7 Year-2014 Thana- MOTIHARI TOWN District- East Champaran ====================================================== Noor Alam Son of Sheikh Sah Mohammad, Resident of Village-Masahi, P.S.- Chhoradano, District East Champaran.

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

(In CRIMINAL APPEAL (DB) No. 489 of 2018) For the Appellant/s : Ms. Nivedita Nirvikar, Sr. Adv.

Mr. Bimal Kumar, Adv.

For the Respondent/s : Mr. Ajay Mishra, APP (In CRIMINAL APPEAL (DB) No. 277 of 2018) For the Appellant/s : Mr. Umesh Chandra Verma,, Adv. For the Respondent/s : Mr. Binod Bihari Singh, APP (In CRIMINAL APPEAL (DB) No. 471 of 2018) For the Appellant/s : Mr. Umesh Chandra Verma, Adv. For the Respondent/s : Mr. Abhimanyu Sharma, APP

====================================================== Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE HARISH KUMAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE HARISH KUMAR)

Date : 02-08-2023

All the three appeals have been preferred by the

respective appellants against the judgment of conviction dated

20.01.2018 and the consequent order of sentence dated

29.01.2018, passed by the learned 1st Additional Sessions Judge-

cum-Special Judge, N.D.P.S. Act, East Champaran, Motihari in

N.D.P.S. Case No. 07 of 2014 and, as such, with consent of the

parties, the same are being heard together and disposed of by

this common order.

2. The appellants Md. Mojamil (in Cr. Appeal (DB)

No. 489 of 2018) and Noor Alam (in Cr. Appeal (DB) No. 471

of 2018) stood charged separately for the offences punishable

under Sections 20(b)(ii)(C) and 23(c) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred as

"NDPS Act, 1985") for recovery of 5 Kg. and 4 ½ Kg. charas

from their respective possession. The appellant Jabiullah (in Cr.

Appeal (DB) No. 277 of 2018) stood charged under Sections

20(b)(ii)(B) and 23(b) of the NDPS Act for recovery of 500 gm.

charas from his conscious possession.

3. During trial, the aforenoted respective charges Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

stand proved and the appellant Md. Mojamil (in Cr. Appeal

(DB) No. 489 of 2018) and Noor Alam (in Cr. Appeal (DB) No.

471 of 2018) have been found guilty for the offences punishable

under Section 20(b)(ii)(C) of the NDPS Act, 1985 and sentenced

to suffer rigorous imprisonment for a term of twelve years with

a fine of Rs. 1,00,000/- (one lac) and in default of payment of

fine to further suffer an additional period of imprisonment for a

term of six months whereas the appellant Jabiullah (in Cr.

Appeal (DB) No. 277 of 2018) has been sentenced to suffer

rigorous imprisonment for a term of five years with a fine of Rs.

50,000/- (fifty thousand) and in default of payment of fine to

further suffer an additional period of imprisonment for a term of

three months.

4. Shorn off unnecessary details, the prosecution case

based upon the written report of the informant Jitendra Deo

Dipak (P.W.4) is that on 07.01.2014, while he was posted as Sub

Inspector, In-charge of Naka No. 3, Motihari, he got an

information from the S.H.O. Motihari Town P.S. that some

persons are moving at the Railway Station Chowk with stolen

articles, whereupon he rushed there and conducted a raid along

with other police personnel. On noticing them, the three

suspects tried to flee away but were promptly nabbed by them, Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

in the meantime, Police Inspector-cum-SHO Motihari Town also

arrived there. On being interrogated, the apprehended accused

disclosed their names as Noor Alam, Md. Mojamil and

Jabiullah. All residents of Masahi P.S. Chhauradano, East

Champaran, Motihari. In presence of two independent

witnesses, namely, Mukesh Patel and Vicky Patel, a search was

made and from possession of Noor Alam, suspicious materials

contained in nine plastic bags were recovered. Further from

possession of Jabiullah, one packet and likewise from

possession of Md. Mojamil, ten packets of suspicious materials

were recovered. The apprehended appellants disclosed that all

the plastic packets are containing charas which was purchased

from Nepal and the same are being taken to Ratlam (Rajasthan)

for sale.

5. The information of the aforenoted incident was

given to the A.S.P. Motihari. It has also been disclosed by the

accused/appellants that there was one another person with them

whose name was Baccha Ji. Thereafter, the informant (PW 4)

after making a consultation with the concerned department,

prepared the seizure list and obtained the signature of the

independent witnesses. The copy of the seizure list had been

handed over to the respective appellants. The recovered charas Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

was sealed in the presence of the witnesses and the appellants

were brought to the police station.

6. On the basis of the aforesaid written report filed by

the informant (P.W.4), Motihari Town P.S. Case No. 7 of 2014

was registered on 07.01.2014 for the offences punishable under

Section 20/22 of the NDPS Act, 1985.

7. The Investigating Officer of the case took up the

investigation and submitted the final report/charge-sheet under

Section 173 CrPC against the appellants after keeping further

investigation pending against other accused persons.

8. On receipt thereof, the Jurisdictional Court took

cognizance of the offences vide order dated 03.06.2014, and the

record of the case was transferred to the Court of Special Judge

NDPS Act, 1985, East Champaran, Motihari (for short the "Trial

Court") for its disposal.

9. The learned Trial Court framed the charges and

duly read over and explained to the appellants to which they

denied and claimed to be tried.

10. In order to prove the charges, the prosecution

examined six witnesses. They are, P.W.1 Santosh Kumar,

Station House Officer of Motihari Town P.S.; P.W.2 Mukesh

Patel and P.W.3 Vicky Patel, seizure list witnesses; P.W.4 Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

Jitendra Deo Dipak, Informant of the case who executed search

and seizure, P.W.5 Kanhaiya Prasad, Investigating Officer of the

case and P.W.6 Dashrath Prasad Yadav, Inspector-cum-Member

of Raiding Team.

11. Apart from the oral evidence, the prosecution has

proved the following documents in evidence in support of the

charges which are as follows:

           SI. No.               Exhibit                      Description
              1.                  Ext.1               Seizure list dt. 07.01.2014
                                                      relating to recovery of
                                                      charas from respective
                                                      possession of the accused
                                                      persons.
              2.                  Ext.2               Formal F.I.R. of Motihari
                                                      Town P.S.Case no.7/2014
              3.             Exts.3 and 3/1           Signature of seizure list
                                                      witnesses Mukesh Patel and
                                                      Vikki Patel on the seizure
                                                      list.
              4.                  Ext.4               Written    application  dt.
                                                      7.1.2014 (F.I.R.) given by
                                                      the informant.
              5.                  Ext.5               Self statement of accused
                                                      Mojamil      dt.8.1.2014
                                                      admitting the allegation
                                                      along with two other co-
                                                      accused Md. Noor Alam and
                                                      Jabbiullah who have put
                                                      their L.T.I on the said
                                                      statement.
              6.             Exts.6 and 6/1           Carbon copy of forwarding
                                                      application sent to the
                                                      Director of Forensic Science
                                                      Laboratory     Patna     and
                                                      Director C.F.S.L. Calcutta.

Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

7. Ext.7 Authorization certificate dt.5.2.2014 authorized by District & Sessions Judge Cum Special Judge for examination of the exhibits of the instant case.

              8.                  Ext.8               F.S.L       report     bearing
                                                      no.1995/14 dt.17.10.2014
                                                      received from the office of
                                                      Director, F.S.L. Patna relating
                                                      to the examination of the
                                                      sample of the Exhibits of
                                                      this case which all the 03
                                                      samples have been found to
                                                      be "CHARAS".
              9.             Exts.9 and 9/1           Receiving receipts obtained
                                                      from C.F.S.L Calcutta and
                                                      F.S.L, Patna in regard to
                                                      deposit of sample of seized
                                                      substance of the instant case
                                                      respectively.

12. On the other hand, the defence has also got

exhibited following documents in their presence which are as

follows.

SI. No. Exhibit Description

1. Exts. A.A/1 and A/2 Arrest Memo of all three accused persons dt.

07.01.2014.

13. After closing the prosecution evidence, the

appellants were examined under Section 313 CrPC, in which

they denied the evidence put forth by the prosecution witnesses

and claimed themselves to be innocent. They completely denied

the recovery of contraband from their possession. Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

14. Finally the learned Trial Court considered the

evidences adduced on behalf of the prosecution and having

heard the counsel for the defence as well as prosecution found

that the prosecution has produced sufficient oral and

documentary evidence that the accused persons have committed

the offence charged under the NDPS Act, 1985, in respect of

recovery of specified quantity of charas from their respective

possession. Further, the learned Trial Court found that the

accused persons have failed to adduce any evidence contrary to

the aforesaid presumption of the Trial Court in regard to the

commission of the offence charged against them and

accordingly the appellants having been found guilty, convicted

and sentenced as noted at the inception.

15. In order to make proper appreciation, the relevant

evidence of prosecution witnesses are propounded hereinbelow:

16. Santosh Kumar P.W.1, who happens to be S.H.O.

Motihari Town P.S. stated in his examination-in-chief that on

07.01.2014 at 8 hours, he got the information that some persons

were wandering near Railway Station, Motihari with stolen

articles whereupon he made a sanha entry and directed the

Officer-in-charge of Motihari Naka No.3 Jitendra Deo Dipak

(P.W.4) for verification of the information. He further stated that Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

he had also gone there with police constables and found that

P.W.4 had already apprehended three accused persons and on

search being made by P.W.4 in presence of independent

witnesses Mukesh Patel (P.W.2) and Vicky Patel (P.W.3), nine

packets of charas were recovered from possession of Noor

Alam and ten packets charas from possession of Mojamil

whereas one packet of charas was recovered from possession of

Jabiullah. Total weight of seized 20 packets charas was found to

be 20 Kg. One accused whose name was disclosed as Bachha

Mian fled away. He identified his signature upon the seizure list

of seized charas. He also deposed that the independent

witnesses had put their signatures on the seizure list which was

duly identified by him. Further, he identified the accused

persons in the dock.

17. In his cross-examination, he stated that the

accused persons were apprehended outside of the main gate of

Railway Station, Motihari, upon the flank of the road, just 2-3

minutes prior to his arrival. He further stated that before search

of the accused persons, his search was also taken but no

document in this regard was made. The weight of the packet of

charas, recovered from the possession of the accused persons,

had not been taken separately. He further testified that the Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

charas was recovered from the bag kept by accused Noor Alam.

It was also recovered from the Jacket of accused Jabiullah and

from the wrapped chadar kept in the hands of accused Mojamil.

18. Mukesh Patel (P.W.2) and Vicky Patel (P.W.3), are

the seizure list witnesses, who had identified their respective

signatures on the seizure list but they refused to identify the

appellants. They stated in their cross examination, that they put

their signature on the dictate of the police personnel. Vicky Patel

(P.W.3) further stated that his signature was obtained on a plain

paper, which contained only the signature of Mukesh Patel

(P.W.2). Both the witnesses also stated that while they were

putting their signatures, neither there was any material nor any

accused was present.

19. Jitendra Deo Dipak (P.W.4), the Informant-cum-

Seizing Officer, stated in his examination-in-chief that on

07.07.2014, while he was posted as In-charge Police Officer of

Motihari Naka No.3, he got information that some persons

having stolen property would board the train, he proceeded

towards Station Chowk, Motihari along with raiding party. He

further deposed that having seen the police personnel, all the

three accused persons tried to flee away but were promptly

nabbed by them. They disclosed their names as Noor Alam, Md. Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

Mojamil and Jabiullah, who are the appellants in this case. He

also testified that in the presence of two independent witnesses,

namely, Mukesh Patel (PW 2) and Vicky Patel (PW 3), search

was made by him and, in the course of which, nine packets of

charas wrapped in a chadar was recovered from the possession

of Noor Alam. The weight of recovered contraband was 4.5 Kg.

He also recovered one packet of charas weighing 500 gm. from

the jacket of accused Jabiullah. He further recovered 10 packets

of charas from the bag of accused Mojamil. The weight of

which was 5 Kg. During the course of interrogation, the accused

persons disclosed that they had purchased the seized charas

from Nepal and were going to Ratlam (Rajasthan) for its sale.

He had prepared the seizure list. Railway ticket was also

recovered, which had also been mentioned. He also identified

all the accused persons, who were present in the court.

20. In his cross-examination, he stated that as there

was no weighing machine, the weight of the seized contraband

had not been made through weighing machine. He assessed the

weight of each of the packets through the measurement of his

finger and found its weight as 500 gm. All the seized packets of

charas were of the same size. This witness also stated that he

had not given a separate identification mark upon the seized Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

packets of charas, which was recovered from the possession of

respective appellants. He handed over the seized materials to

S.H.O. Town P.S. Motihari. The S.H.O. was present at the police

station. He also stated that he neither took the photographs of

the seized substance nor prepared an inventory of it.

21. Kanhaiya Prasad (P.W.5), who happens to be

Investigating Officer of the case, stated in his examination-in-

chief that he had taken the charge of the investigation of the

case on 07.01.2014. During the course of the investigation, he

had recorded the re-statement of the informant (P.W.4) and other

witnesses, namely, Santosh Kumar (P.W.1), Dashrath Prasad

Yadav (P.W.6), Mukesh Patel (P.W.2) and Vicky Patel (P.W.3),

who had supported the prosecution case. He also inspected the

place of occurrence. This witness further deposed that he had

recorded the self-statement of all the three accused persons and

they had put their signature(s) and admitted their guilt. He had

produced the seized material before the Magistrate for taking

out the sample after getting permission from the court. On

receipt of the permission, he sent the sample for its chemical

examination to FSL Patna and CFSL, Kolkata. He further

deposed that he had submitted charge-sheet without sending the

sample to the laboratory for its chemical examination due to Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

lack of manpower but kept the further investigation pending.

This witness was further recalled on 07.12.2017. He further

stated that during the course of further investigation, he had sent

the sample of seized substance on 07.06.2014 through

Constables Sanjay Kumar and Vishanu Kumar to the CFSL,

Kolkata and FSL, Patna for its examination. However, the

sample was returned due to mistake that in place of writing FSL,

Patna it had been mentioned FSL, Muzaffarpur on the envelope.

P.W.5 further deposed that on 11.08.2014, he had filed a petition

before the Court for correction and on 20.08.2014, he produced

the sample of seized substance to the office of Director FSL,

Patna, and got its receipt. He further handed over the charge of

further investigation to Station House Officer on account of his

transfer on 12.09.2014. He identified the accused persons, who

were present in the court.

22. In cross-examination, he stated that the witnesses

quizzed by him, had not told about the weight of seized

substance nor did the seizure list contain the separate weight of

seized substance recovered from the respective accused persons.

He has also not mentioned in the case diary whether the seized

packets were kept at Thana Malkhana. He testified that there

was no independent witness present at the time of recording the Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

statements of accused by him. Exhibits 6 and 6/1 do not bear the

signature of Magistrate but Exhibit 6/1 bears only his signature.

He further stated that the fact related to certification of seized

substance by the Magistrate had not been mentioned in the case

diary nor it was mentioned where the seized substance kept and

from where it was produced before the Magistrate for taking out

the sample. He further deposed that he had not given any

petition before the court for destruction of the seized substance.

Further Exhibit 9/1 does not bear his name and Exhibit-6 series

and Exhibit-7 do not bear the signature of the learned

Magistrate. He had also not taken the photographs of seized

substance.

23. Dashrath Prasad Yadav (P.W.6) is the A.S.I. -cum-

Member of Raiding Team, stated that being a Member of the

Raiding Team, under the leadership of S.I. Jitendra Deo Dipak

(P.W.4), they went near Railway Station, Motihari, where all the

three accused persons were apprehended and, in course of

search, in presence of independent witnesses, nine packets of

charas were recovered from the bag of accused Noor Alam, ten

packets of charas from the accused Mojamil and one packet

charas from another accused. A seizure list of seized charas and

rail ticket was prepared in the presence of independent Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

witnesses. The total weight of seized substance was found to be

20 Kg. He also identified all the accused persons present in the

court.

24. In cross-examination, he deposed that he had not

seen the seized substance after opening its packets. The names

of accused persons had not been written in the seized packets.

His statement was also recorded by the Investigating Officer. He

had not stated before the Investigating Officer that total weight

of seized substance was of 20 Kg. Further, he had also not been

searched.

25. We have heard Ms. Niveditta Nirvikar, learned

senior advocate duly assisted by Mr. Bimal Kumar, learned

advocate for the appellants in all the appeals. Mr. Ajay Mishra,

Mr. Binod Bihari Singh and Mr. Abhimanyu Sharma learned

Additional Public Prosecutors for the State.

26. Learned senior advocate appearing on behalf of

the appellants has painstakingly taken us to the deposition of the

aforenoted witnesses and shown the inconsistencies found in the

statement of the witnesses. She vehemently submitted that there

is no compliance of Section 50 of the NDPS Act, 1985,

inasmuch as the appellants were not produced before the

Judicial Magistrate. From the records and the deposition of the Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

witnesses, it would manifest that the recovered contraband has

never been weighed nor it has been segregated or marked that

from which of the appellants, which of the suspected packets

have been recovered. Instead of segregating or separately

marking the plastic packets, the witnesses who were police

personnel mixed up the seized substance. She has further drawn

the attention of this Court to the deposition of P.Ws.2 and 3,

who are the seizure list witnesses, but they have denied the fact

that any such recovery has been made from the possession of

the appellants rather they have stated in their cross-examination

that they have put their signatures in a plain paper on the dictate

of Daroga Ji. They further stated that at the time of putting their

signatures, neither there was any material nor anyone was

present. They have also stated that their statements were never

recorded by the police. With reference to the aforesaid

statements, learned senior counsel further submitted that as the

P.Ws.2 and 3, who were the seizure list witnesses, have not

supported the factum of any recovery. Thus, the prosecution

case appears to be doubtful that too when P.Ws.2 and 3 have not

been declared hostile. Ms. Nirvkiar next submitted that the

conviction of the appellants is based on their self confession,

recorded under Section 67 of the NDPS Act, 1985, which is not Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

at all admissible in view of the mandate of the Hon'ble Supreme

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

[(2021) 4 SCC 1]. Another contention on behalf of the

appellants is that there is no compliance of Section 52(A) of the

NDPS Act, 1985, and, thus, illegalities committed in drawing up

the sample of the seized contraband. During the course of the

trial, none of the witnesses have come out with any explanation

that where the seized substance was kept after the seizure being

made, till the production of the same before the Magistrate.

Neither Malkhana register was produced nor any witness was

examined with respect to the facts that where it was kept. She

lastly submitted that there is lack of compliance with the

prescribed procedure under the NDPS Act, 1985 at all the

stages. In order to buttress the aforenoted contention, she relied

upon the judgments of this Court as well as the Apex Court

rendered in Ashok Alias Dangra Jaiswal v. State of Madhya

Pradesh [(2011) 5 SCC 123], Mohinder Kumar v. State, Panji,

Goa [(1998) 8 SCC 655], Union of India v. Mohanlal and

Another [(2016) 3 SCC 379], State of Punjab vs. Baldev Singh

[(1999) 6 SCC 172] and Jagat Prasad v. State of Bihar and

Another [(2022) 1 PLJR 568].

27. Per contra, learned Additional Public Prosecutors Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

appearing on behalf of the State while refuting the contention of

the appellants, submitted that in the present case, there is no

application of the provision under Section 42(2) as well as 50 of

the NDPS Act, 1985 because of the fact that there had been

confidential information received by the P.W.4 (informant) only

with respect to stolen articles and not in regard to any narcotic

substance, but in course of search, charas like narcotic

substance was recovered from all the appellants. Non-

production of the seized materials before the Court during the

course of trial is also not fatal to the prosecution case because

the seized materials had been produced before the Court at the

time of taking out its sample. Moreover, the witnesses are

consistent on the point of recovery of charas from the conscious

and exclusive possession of the appellants. He further submitted

that the sample of seized substance was chemically examined

and it has been found to be charas. The appellants have also

voluntarily confessed their guilt. Moreover, the discrepancies, if

any, are trifling in nature, not suffice to shake the very

foundation of the prosecution case and, as such, the same is

required to be ignored.

28. This Court has given anxious consideration to the

submissions made on behalf of the parties and carefully perused Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

the materials available on record.

29. Before discussing the merit of the case, this Court

deems it apt and proper to highlight the procedure framed for

drawing up the sample of the narcotic which has been taken

note of by this Court in various cases. The Narcotic Control

Bureau, Government of India, time to time issued Standing

Instruction in relation to the mode and manner of drawing a

sample of the narcotics.

30. The relevant clauses of Standing Instruction No.

1/88 are as follows:-

1.5 Place and time of drawal of sample

Samples from the Narcotic Drugs and Psychotropic Substances seized must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug has been recovered, and mention to this effect should invariably be made in the panch nama drawn on the spot.

1.6 Quantity of different drugs required in the sample The Quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn.

1.7.- Number of samples to be drawn in each seizure case

(a) In the case of seizure of a single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container.

(b) However, when the package/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by U.N. Kit, conclusively indicating that the packages are identical in all respect/packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hasish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn.

(c) Whereafter making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remain, and in case of other drugs less than 5 packages/containers remain, no Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

bunching would be necessary and no samples need be drawn.

(d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja and Hasish, one more sample in duplicate may be drawn for such remainder package/containers

(e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.

31. From the aforenoted relevant clauses of Standing

Instruction, it is evident that where more than one

containers/packages is found, it is mandated to draw a sample(s)

from each of the individual container/package and test each of

the sample with the field test kit. If the containers/packages are

identical in shape, size and weight then lots of 10 of 40

packages may be prepared and, thereafter, representative

samples from each container/package in a particular lot are to be

drawn, mixed and sent for testing.

32. The Supreme Court in Khet Singh v. Union of

India [AIR 2002 SC 1450], while considering an identical issue

held that the instructions issued by the Narcotics Control

Bureau, New Delhi, are to be followed by the officer in-charge Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

of the investigation of the crimes coming within the purview of

the NDPS Act, 1985 even though these instructions do not have

the force of law. They are intended to guide the officers and to

see that a fair procedure is adopted by the officer-in-charge of

the investigation.

33. In Noor Aga v. State of Punjab [(2008) 16 SCC

417], the Supreme Court after giving thoughtful consideration to

the guidelines issued under the NDPS Act, in the Standing

Order, observed in paragraphs 89 to 91 as under:

"89. Guidelines issued should not only be substantially complied, but also in a case involving penal proceedings, vis-à-vis a departmental proceeding, rigours of such guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefor, it becomes obligatory on the part of the subordinate authorities to comply therewith.

90. Recently, this Court in State of Kerala & Ors. v. Kurian Abraham (P) Ltd. & Anr. [(2008) 3 SCC 582], following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan [(2004) 10 SCC 1] held that statutory instructions are mandatory in nature.

Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

91. The logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution."

34. Be it noted that in the instant case, there is no

evidence to the effect that the contraband substance so

recovered in 20 plastic packets had ever been tested for

verification. The P.Ws. 1, 4, 5 and 6 are consistent in their

deposition that at no point of time, the recovered substance was

weighed. P.Ws. 1, 4 and 5 have consistently deposed before the

Court that the seized contraband substance were not even visible

or seen from the outside of the packets. The P.Ws. 1 and 4, who

were present at the time of search and seizure have concluded

that the seized substances were charas because of the

confession of the appellants. There is no evidence on record that

the 20 packets of charas packed in a plastic bag were assigned

separate serial number or they have been weighed separately. Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

35. That apart, the P.W.5 (I.O.) in his deposition in

para-26, shown his ignorance as to where the seized contraband

was kept and from where it has been brought to produce before

the learned Trial Court, the same has not been mentioned in the

case diary.

36. Further, the contention of the appellants with

regard to the non-assessment of the weight of the recovered

substance from the possession of the appellants also finds

support from the deposition of the witnesses, who consistently

testified that at no point of time the weight of the seized

substance has been made.

37. P.W.4 (informant) in para-13 of his cross-

examination categorically deposed before the Court that the

weight of the packets was assessed through the measurement of

his fingers. Likewise, P.Ws. 1 and 5 (I.O.) stated in paras-13 and

14 of their respective depositions before this Court that the

weight of the substance contained in the plastic bags had never

been done.

38. The P.W.5 (I.O.) of the case also testified that no

separate marka was made on the recovered plastic packets

suggesting which packet was recovered from which of the

accused persons. The aforesaid fact has also been corroborated Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

by the deposition of P.Ws. 1 and 4 (informant).

39. This Court also finds that there is no evidence at

all on record, suggesting that after seizure of the contraband

(charas) from the appellants, where it was kept. Neither the

Malkhana In-charge was examined during the trial nor the

register of the Malkhana was produced before this Court to

suggest that there was any entry of seized contraband in the

Malkhana.

40. Section 52(3) of the NDPS Act, 1985, stipulates

that every person arrested and every article seized under Sub

Section 2 of Section 41, Sections 42, 43 or 44 of the Act shall be

forwarded without unnecessary delay to (a) the officer in-charge

of the nearest police station, or (b) the officer empowered under

Section 53 of the NDPS Act, 1985. Since the appellants were

arrested by the police personnel, hence, the seizing officer was

required to keep the sealed packages containing contraband and

other seized articles in his safe custody till they are deposited in

the Malkhana with a forwarding memo indicating the case no.,

name of the accused person, reference of the test memo,

description of drugs, drug wise number of packages and

quantity and total number of all packages. He was required to

take acknowledgment of receipt for such deposit from the Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

Malkhana In-charge and the same was required to hand over to

the Investigating Officer. The seizing officer or any of the

witness has laid no evidence to show that the seized substance

was deposited in Malkhana and thereafter it was produced

before the Trial Court for getting permission for sampling. The

aforenoted defects/deficiency certainly makes the prosecution

case doubtful.

41. The further contention of the appellants regarding

the case having been based on the confessional statement of the

appellants under Section 67 of the NDPS Act, 1985 is also fatal

to the prosecution. A three Judges Bench of the Supreme Court

in Tofan Singh (supra) while considering the issue in question

held that the officers, who are invested with the powers under

Section 53 of the NDPS Act, 1985 are "police officers" within

the meaning of Section 25 of the Evidence Act and, therefore,

any confessional statement made before them would attract the

bar of Section 25 of the Evidence Act, 1872 and cannot be taken

into account to convict an accused.

42. During the course of submission, the learned

senior counsel also contended that there is no compliance of

Section 50 of the NDPS Act, 1985, which is mandatory in

nature and non-adherence to the provision of Section 50 of the Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

Act, vitiates the conviction. Section 50 of the NDPS Act, 1985,

mandates the empowered officer to inform the person to be

searched that he has a right to be searched in the presence of

Gazetted Officer or a Magistrate. Merely because the appellants

did not make a request to the officer on his own that the search

should be conducted in the presence of such officer, it cannot be

held that there was no need to inform them of their right.

43. With regard to the aforesaid contention, from the

facts on record, it is evident that this is a case of chance

recovery of contraband, as from the FIR it is evident that the

informant, (P.W.4) raided the place of occurrence on receipt of

information with regard to loitering of some suspected persons

with stolen materials and there had never been any knowledge

or information with regard to trafficking or concealment of

narcotic drugs and psychotropic substance.

44. The issue raised by the learned senior counsel for

the appellants has been answered by the Constitution Bench of

the Hon'ble Apex Court in the case of State of Punjab v.

Baldev Singh (supra). The relevant paragraphs thereof are

quoted hereinbelow for proper appreciation of the issue.

"25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows:

Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

(2-B) Under Section 41(2) only the empowered officer can give the authorization to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.

(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non- compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.

(4-A) If a police officer, even if he happens to be an 'empowered' officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.

(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.

(5) On prior information the empowered officer Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.

(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non- compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."

45. In the case of Mohinder Kumar v. State, Panji,

Goa (supra) while considering an identical issue, the learned

Trial Court, after analyzing the provisions of the Act, 1985, has Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

held that if a police officer, without prior information, makes a

search and effects arrest of persons and if during such a search

he stumbles on a chance recovery of any narcotic drugs or

psychotropic substance and if he happens to be a police officer

who is not empowered under the Act to effect search and

seizure, he should inform the empowered officer as required by

the Act, 1985, if he himself happens to be the empowered

officer, then from that stage onwards the investigation must be

carried out in accordance with the provisions of the Act.

46. From the record it does not transpire that from the

date of seizure of the contraband till the application filed before

the learned Magistrate for its sampling, where the contraband

was kept, the prosecution is silent. This makes the entire

prosecution case doubtful. Though, the contraband was brought

before the learned Magistrate but admittedly the same was

without any specific marka and identification as to from whose

possession and as to what quantity, it has been recovered.

However, the sample was sent to the Forensic Science

Laboratory, Patna, for its chemical examination and the FSL

report dated 18.10.2014 has been produced before the Trial

Court and marked as Ext.8 on 23.11.2017, certainly before the

closure of the examination of all the witnesses. Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

47. The aforenoted report suggests that "the dark

greenish brown coloured slab like solid substances contained in

the tin boxes marked as 1, 2 & 3 as described above was found

to be CHARAS. CHARAS also known as Hashish is the

resinous exudate of the flowering & fruiting tops of the female

plant of Cannabis sativa containing Tetra Hydro Cannabinol

(THC) as their chief intoxicating ingredient."

48. The point, which also emerging from the record

and needs to be highlighted is that even after going through the

entire records this Court does not find any material suggesting

that there is any compliance of Section 52A(1) which mandates

the authority to initiate action for disposal of the contraband.

49. In the case of Union of India v. Mohanlal and

Another (supra), the Hon'ble Supreme Court having taken note

note of the Standing Instructions issued by the Narcotic Control

Bureau, Government of India, pleased to enunciate the

guidelines for disposal of the seized narcotic and directed to

ensure its compliance strictly.

50. This Court also cannot lose sight of the fact that

the seizure list witnesses P.Ws.2 and 3, have completely denied

the factum of any recovery and seizure from the possession of

the appellants but, surprisingly, they have not been declared Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

hostile. Needless to observe that in the aforenoted facts the

deposition of the seizure list witnesses cannot be made any basis

of conviction.

51. This Court also finds the testimonies of P.Ws. 1

and 4 are inconsistent in respect to the recovery of contraband

as P.W.1 in his deposition stated that contraband was recovered

from a bag kept by the appellant Noor Alam whereas P.W.4 in

his deposition stated that the same was recovered from the

possession of the appellant Noor Alam kept in a wrapped

chadar. The witnesses are consistent that they had never seen

the contraband substance by opening the plastic bag and only on

the confessional statement of the appellants, they came to the

conclusion that the recovered substance is nothing but charas

resulting into institution of the FIR and set the law into motion.

52. Thus, on the appreciation of the entire evidence,

this Court is of the opinion that there are serious infirmities in

the prosecution evidence. Hence, the judgment of conviction

and consequent order of sentence passed by the learned Trial

Court cannot be sustained.

53. This Court, therefore, hold that the appellants are

entitled to be acquitted. Accordingly, the appeals are allowed.

The impugned judgment of conviction dated 20.01.2018 and the Patna High Court CR. APP (DB) No.489 of 2018 dt.02-08-2023

consequent order of sentence dated 29.01.2018, passed by the

learned 1st Additional Sessions Judge-cum-Special Judge,

N.D.P.S. Act, East Champaran, Motihari in N.D.P.S. Case No.

07 of 2014, are hereby set aside.

54. The appellants Md. Mojamil (in Cr. Appeal (DB)

No. 489 of 2018), Jabiullah (in Cr. Appeal (DB) No. 277 of

2018) and Noor Alam (in Cr. Appeal (DB) No. 471 of 2018) are

acquitted of the charges levelled against them. They are directed

to be set at liberty forthwith unless their dentention is required

in any other case.

(Harish Kumar, J)

A.M. Badar, J.

(A. M. Badar, J) rohit/-

AFR/NAFR                AFR
CAV DATE                17-07-2023
Uploading Date          02-08-2023
Transmission Date       02-08-2023