Gopi Sah vs The State Of Bihar
2023 Latest Caselaw 3477 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.840 of 2022
      Arising Out of PS. Case No.-247 Year-2017 Thana- MAHISHI District- Saharsa
======================================================

Gopi Sah, Son of Sonelal Sah, R/v- Rajanpur, P.S.- Mahishi, District- Saharsa

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

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

For the Appellant/s : Mr. Krishna Prasad Singh, Sr. Advocate Mrs. Meena Singh, Advocate For the Respondent/s : Ms. Shashi Bala Verma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE NAWNEET KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 03-08-2023

By the impugned judgment and order dated

19.09.2022/23.09.2022 passed by the learned Sessions Judge,

Saharsa in connection with Special Case No. 7 of 2017, arising

out of Mahishi P.S. Case No. 247 of 2017, the appellant has

been convicted and sentenced as under:

  Conviction                                    Sentence
  under Section        Imprisonment        Fine (Rs.)           In default of
                                                                fine
  22(c) of the         RI for 11 years     1,50,000/-           SI for 6 months
  NDPS Act

2. A self statement of the Station House Officer (SHO)

(informant), Mahishi recorded on 27.11.2017, is the basis for Patna High Court CR. APP (DB) No.840 of 2022 dt.03-08-2023

registration of Mahishi P.S. Case No. 247 of 2017 disclosing

commission of the offences punishable under Section 20(b)(ii)

(C) and Section 22 of the Narcotic Drugs and Psychotropic

Substances Act (NDPS Act in short) which finally gave rise to

Special Case No. 7 of 2017 in the court of learned Sessions

Judge, Saharsa. It is the prosecution's case as disclosed in the

said self statement that the informant received a secret

information on 26.11.2017 at 8:10 pm from the Sub-Divisional

Magistrate, Saharsa that three sons of one Sonelal Sah namely

Ram Pravesh Sah, Ramdhan Sah and this appellant were

indulging in illegal trade and smuggling of ganja. Acting on the

said secret information a team was constituted headed by the

Sub-Divisional Magistrate, Saharsa, Sub-Divisional Police

Officer, Saharsa and other officials and police officials/personnel

to conduct a raid. The house of Sonelal Sah was thereafter

searched in the said night leading to recovery of 4 quintals 690

grams of ganja and a cash of Rs. 1,36,495/-. Two individual

witnesses namely Rustam Ali (PW-4) and Md. Haidar Ali (PW-

5) were requested to remain present during the course of search

and seizure. A seizure list was prepared at the spot on which all

the officials and independent witnesses put their signatures. The

appellant was arrested on the spot in the house of Sonelal Sah, Patna High Court CR. APP (DB) No.840 of 2022 dt.03-08-2023

according to the prosecution's case. Based on the allegation of

the aforesaid effect, the FIR was registered against this

appellant, Ram Pravesh Sah and Ramdhan Sah. It was not the

prosecution's case that Ram Pravesh Sah and Ramdhan Sah were

present in the house at the time of search and seizure of the

house. The appellant, according to the prosecution's case was

present in the house.

3. We will be dealing with relevant evidence in this

regard while considering the depositions of the witnesses. We

however, consider it apt to notice at this juncture itself that there

is consistent evidence on record to the effect that this appellant

resided in a house different from the house where the search was

conducted. We also take note of the fact at the outset that we

have not seen any evidence as regards the manner in which

sample from the recovered articles was drawn for the purpose of

the same being sent to Forensic Science Laboratory for chemical

examination. Even according to the prosecution's case the

sample, in whatever manner drawn, was dispatched to the

Forensic Science Laboratories at Patna and Kolkata on

13.02.2018 two and half months after seizure. The sample was

received in the FSL Patna eight days thereafter, on 21.02.2018,

which was sent through a chaukidar, a special messenger, Patna High Court CR. APP (DB) No.840 of 2022 dt.03-08-2023

according to the prosecution's case.

4. Be that as it may, the police upon completion of

investigation submitted charge-sheet against this appellant for

commission of the offences punishable under Section 20(b)(ii)

(C) and Section 22 of the N.D.P.S. Act. Final report was

however submitted against two others namely, Ramdhan Sah and

Ram Pravesh Sah. The special court took cognizance of the

offences punishable under Section Section 20(b)(ii)(C) and

Section 22 of the N.D.P.S. Act and proceeded against all the

three persons who were named in the FIR. Charges were framed

against all the three for commission of offences punishable

under Section 22(c) of the N.D.P.S. Act. The appellant and the

two co-accused persons denied the charge and claimed to be

tried.

5. At the trial the prosecution got examined altogether

seven witnesses including the seizure list witnesses Rustam Ali

(PW-4), Md. Haidar Ali (PW-5). Informant of the case, Anil

Kumar Singh deposed as PW-1 and the I.O. Hareshwar Prasad

Singh deposed as (PW-6). The Block Supply Officer namely

Braj Kishor Sada (PW-2), Abhishek Kumar (PW-3) and

Amrendra Kumar Amar (PW-7) all of whom had participated in

conduct of raid also deposed at the trial for the prosecution. In Patna High Court CR. APP (DB) No.840 of 2022 dt.03-08-2023

addition to the oral evidence of the witnesses the prosecution

also adduced following documentary evidence:-

1. Seizure list- Exhibit-1

2. Self written statement of the informant-Exhibit-2

3. Signature on the self written statement- Exhibit-2/1

4. Formal FIR-Exhibit-3

6. After closure of the prosecution's evidence, the

persons facing trial were questioned under Section 313 of the

CrPC so as to give them an opportunity to explain the

circumstances emerging against them based on the prosecution's

evidence adduced at the trial. They answered in negative

claiming their innocence. They also got examined two defense

witnesses, namely, Bipin Bhagat (DW-1) Lalan Prasad Singh

(DW-2) and brought on record two documentary evidence by

way of Exhibits D1 and D2.

7. The trial court, after having appreciated the

evidence adduced at the trial, has come to a conclusion by its

impugned judgment that Ramdhan Sah and Ram Pravesh Sah

deserved to be given benefit of doubt and accordingly acquitted

them of the charge which they were facing. As regards this

appellant, the trial court, concluded that the prosecution has

been able to establish recovery of huge quantity of contraband

articles from the house of Sonelal Sah and presence of the Patna High Court CR. APP (DB) No.840 of 2022 dt.03-08-2023

appellant in the house of the Sonelal Sah when the search and

seizure was conducted. The trial court while convicting the

appellant opined in paragraph 31 as under:-

"So far as involvement of accused Gopi Sah in the offence is concerned, I have discussed in foregoing paragraphs that there are evidence and materials available against him regarding his presence on the date of occurrence in his village and he was arrested at the place of occurrence. His house as claimed being situated beside the house of his father, which is the place, of occurrence does not absolve his liability from the offence. I have also opined above that there is every possibility that taking advantage of absence of his father he would have been using that home for his malicious activity of trading of Narcotic Drugs. The defense has also failed to prove conclusively that this accused was not involved in the offence beyond all reasonable doubts. Accordingly, I find and hold accused Gopi Sah guilty for the offence committed under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act. He is already in custody and hence he is sent back to District Jail Saharsa to be produced on 23.09.2022 for hearing on the point of sentence."

8. Learned counsel appearing on behalf of the

appellant has argued that it is apparent from the impugned

judgment of the trial court that the prosecution's case that the

appellant was present in the house when search was conducted

and seizure was made, is the only basis for the appellant's

conviction. She has drawn our attention to the evidence of PW-5 Patna High Court CR. APP (DB) No.840 of 2022 dt.03-08-2023

wherein he has clearly deposed in paragraph 5 that at the time of

seizure the appellant was at his shop. She has submitted that

PW-2, Block Supply Officer, himself deposed at the trial that all

the three accused persons had separate houses. PW-4, a seizure

list witness also deposed that sons of Sonelal Sah had separate

houses and Sonelal Sah used to live in Delhi after his second

marriage and had given on rent his house to someone dealing in

scraps. She further submits that the prosecution is silent on the

point as to how the sampling of the seized article was done and

in any case the prosecution has not been able to establish that

the samples were drawn in the presence of the Magistrate as

ordained under Section 52A(2)(b) of the NDPS Act. She further

submits that the material exhibits were not produced at the trial

and no evidence was led at the trial that the contraband seized

from the house of Sonelal Shah were destroyed. The delay of

more than two and a half months in dispatching the sample from

the date of seizure and delivering the sample in the Forensic

Science Laboratories, 7-8 days after the same was sent to be

delivered through special messenger renders the entire case of

the prosecution completely doubtful, she contends. She has

further argued that it was impermissible for the officials to have

conducted search of the house after the sunset and before Patna High Court CR. APP (DB) No.840 of 2022 dt.03-08-2023

sunrise without following the procedure prescribed under

Section 42 of the NDPS Act. She further argues that the

provisions under Section 42 of the NDPS Act has been blatantly

breached in the present case.

9. Learned Additional Public Prosecutor representing

the State, while defending the finding recorded by the trial

court, has submitted that the prosecution proved at the trial the

appellant's presence in the house of his father Sonelal Sah at the

time of search and seizure from where huge quantity of ganja

came to be recovered in the presence of the senior officials and

two independent witnesses. As the presence of the appellant in

the house from where the recovery was made has been

established, the prosecution was able to establish that he was in

conscious possession of ganja and, therefore, the conviction

recorded by the trial court is fully justified.

10. We have perused the impugned judgment and

order of the trial court as well as the lower court's records. We

have given our thoughtful consideration to the rival and

submissions made on behalf of the appellant and the State. We

are satisfied on perusal of the evidence, both oral and

documentary, available on record that there has been complete

violation of Section 42 of the NDPS Act by the informant and Patna High Court CR. APP (DB) No.840 of 2022 dt.03-08-2023

other officials by entering and searching the house/building of

Sonelal Sah in the night of 26.11.2017 without following the

procedure prescribed therefor. Section 42 of the NDPS Act reads

thus:-

"42. Power of entry, search, seizure and arrest without warrant or authorisation.-

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article Patna High Court CR. APP (DB) No.840 of 2022 dt.03-08-2023

which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:

Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2). Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."

11. Sub-section (1) of Section 42 permits an

empowered officer to enter into and search any building and in

case of resistance break open any door and remove any obstacle

to search entry between sunrise and sunset if he has reason to

believe from personnel knowledge or information given by any

person upon taking down in writing that any Narcotics Drugs

and Psychotropic Substance, or controlled substance in respect

of which an offence punishable under this Act has been Patna High Court CR. APP (DB) No.840 of 2022 dt.03-08-2023

committed or any document or other articles which may furnish

evidence of the commission of such offence or any illegally

acquired property or any document or other articles which may

furnish evidence of holding any illegally acquired property

which is liable for seizure or freezing or forfeiture under

Chapter VA of the NDPS Act is kept or concealed in such

building. The said provisions authorises the empowered officers

to seize such drug or substances and all materials used in

manufacture thereof and detain and search and arrest any person

whom he has reason to believe to have committed any offence

punishable under the NDPS Act. On plain reading, we are of the

view that following essential condition precedents for exercise

power of entry, search, seizure and arrest as contemplated under

sub-section (1) of Section 42 of the Act excluding the second

proviso thereof;-

(i) Such power can be exercised between sunrise and

sunset.

(ii) He must have reason to believe from personal

knowledge or information given by any person and 'taken down

in writing' that any Narcotic Drug or Psychotropic Substance or

controlled substance in respect of offence punishable under this

act has been committed.

Patna High Court CR. APP (DB) No.840 of 2022 dt.03-08-2023

Or

Any document or other article which may furnish

evidence of commission of such offence or any illegally

acquired property or any document or other article which may

furnish evidence of holding any illegally acquired property

which is liable for seizure or freezing or forfeiture under

Chapter VA of this Act, is kept or concealed in any building,

conveyance or enclosed place.

12. The second proviso to sub-section (1) of Section

42 is an exception to the prescription under Section 42(1) of the

NDPS Act and states that if an empowered officer has reason to

believe that a search warrant or authorization cannot be obtained

without affording any opportunity for concealment of evidence

or facility for the escape of the offender, he may enter and

search such building, conveyance or enclosed place at any time

between sunset and sunrise after recording the grounds of his

belief.

13. On close reading of sub-section (1) of Section 42 it

can be easily culled out that it is imperative for an empowered

officer while exercising power under sub-section (1) of Section

42 that he must take down in writing his personal knowledge or

information received by him which is the reason for him to Patna High Court CR. APP (DB) No.840 of 2022 dt.03-08-2023

believe that the conditions stipulated for exercise of such power

exist. In the present case, we do not see any evidence that the

empowered officer, before conducting search had taken down in

writing the information or his personal knowledge.

14. Secondly, the officials entered into the building

after sunset and before sunrise without recording the grounds of

his belief that a search warrant or authorization could not be

obtained for causing search in the night without affording

opportunity for concealment of evidence or facility for escape of

the offender; a condition precedent under the second proviso to

sub-section (1) of Section 42 of the Act. Apparently, keeping in

mind the stringent provisions of the NDPS Act and serious

consequences sub-section (2) of Section 42 prescribes yet

another safeguard and lays down that where an officer takes

down any information in writing under sub-section (1) or

records grounds for his belief under the proviso thereto, he shall

within 72 hours send copy thereof to his immediate official

superior. We do not find compliance of sub-section (2) of

Section 42 in the present case.

15. Thirdly, there is no evidence at all as to how the

sample was drawn. It is evident from the prosecution's case that

the sample was not drawn at the time of seizure. There is no Patna High Court CR. APP (DB) No.840 of 2022 dt.03-08-2023

clue as to when was the sample drawn. It can, however, be

definitely said based on the evidence available on record that the

sample was not drawn in the presence of a Magistrate as

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

16. Further, we find substance in submission advanced

on behalf of the appellant that dispatch of sample on 13.02.2018

to the Forensic Science Laboratory of the articles seized on

26.11.2017, adversely affects the entire case of the prosecution.

Where was the contraband kept, why was there so much of

delay in sending the sample for chemical examination, are few

questions which have completely remained unanswered. The

failure on the part of the prosecution to produce the seized

articles as material exhibit at the trial in the absence of any

certification of its disposal, gives another blow to the

prosecution's case.

17. Further, we cannot loose sight of the fact that PW-

5, who is a prosecution witness and has not been declared

hostile, clearly deposed at the trial that this appellant was not

present in the house when the search was conducted. He rather

deposed that the house was locked from outside and the lock

was broken open by the officials.

18. If all the aspects discussed above are taken Patna High Court CR. APP (DB) No.840 of 2022 dt.03-08-2023

together, we are of the view that the prosecution miserably

failed to prove the charge against the appellant at the trial. We

do not find it safe to uphold the finding of conviction based

wholly on the evidence of the informant, the IO and other

officials who were party to the search and seizure.

19. In the result, the appellant stands acquitted of the

charge of offence punishable under section 22(c) of the NDPS

Act by giving him benefit of doubt.

20. Accordingly, the impugned judgment of conviction

and order of sentence dated 19.09.2022/23.09.2022 passed by

the learned Sessions Judge, Saharsa in connection with Special

Case No. 7 of 2017, arising out of Mahishi P.S. Case No. 247 of

2017 are set aside.

21. This appeal is allowed accordingly.

22. The appellant is in jail custody. Let him be

released forthwith, if he is not required in any other case.

                                         (Chakradhari Sharan Singh, J)


                                            (Nawneet Kumar Pandey, J)
Rajesh/Sudha
AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          08.08.2023
Transmission Date       08.08.2023