Patna High Court
Bhikam Singh @ Bikam Singh vs The Union Of India Through P. K. Pandey D. ... on 8 December, 2023
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1322 of 2018
Arising Out of PS. Case No.-51 Year-2016 Thana- D.R.I District- Muzaffarpur
======================================================
Naubat Ram S/o Sri Om Prakash, Resident of Village- Gajupura, P.S.- Milak
Khanam, Distt- Rampur UP.
... ... Appellant/s
Versus
The Union Of India Through P. K. Pandey, D. R. I. - Patna
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1087 of 2018
Arising Out of PS. Case No.-51 Year-2016 Thana- D.R.I District- Patna
======================================================
Bhikam Singh @ Bikam Singh son of Om Prakash Resident of Village -
Gajupura, P.O. and P.S. Milak Khanam, District - Rampur U.P.
... ... Appellant/s
Versus
The Union Of India Through P. K. Pandey D. R. I. , Patna
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1322 of 2018)
For the Appellant/s : Mr. Prakash Tiwari, Advocate
For the Respondent DRI : Mr. Anshuman Singh, Advocate
(In CRIMINAL APPEAL (DB) No. 1087 of 2018)
For the Appellant/s : Mr. Krishna Prasad Singh, Sr. Advocate
Ms. Meena Singh, Advocate
Mr. Nachiketa Jha
For the Respondent DRI : Mr. Anshuman Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date : 08-12-2023
Since same judgment and order of the Trial Court is being
assailed in both these appeals, they have been heard together and are being
disposed of by the present common judgment and order.
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
2. The Appellants have preferred these appeals under Section
374 (2) and 389 (1) of the Code of Criminal Procedure assailing the
judgment dated 21st July, 2018 and order of conviction and sentence
dated 24th July, 2018, passed by the learned 1 st Additional District and
Sessions Judge, Muzaffarpur in Trial No. 06 of 2018 (Arising out of
DRI Case No. 51 of 2016) whereby and whereunder the Appellants
have been convicted as under:
Appellant's Penal Sentence
Name Provisions
Imprisonment Fine (Rs.) In default of
fine
CRIMINAL APPEAL (DB) No. 1322 of 2018
Naubat Ram Under RI for Twelve One lakh fifty RI for one
Sections years thousand and half year
20(b)(ii)(C)
and 25 of the
N.D.P.S. Act
CRIMINAL APPEAL (DB) No. 1087 of 2018
Bhikam Under RI for Twelve One lakh fifty RI for one
Singh @ Sections years thousand and half year
Bikam Singh 20(b)(ii)(C)
and 25 of the
N.D.P.S. Act
3. One Pradeep Kumar Pandey, Intelligence Officer, attached to
Directorate of Revenue Intelligence (DRI), Patna lodged a complaint
before the learned District and Sessions Judge, Muzaffarpur, Bihar,
alleging inter alia that on 19th of January, 2016, he received an
information that a huge consignment of Ganja was being transported
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
to Muzaffarpur by a Tata Container Truck, bearing Registration No.
UP22T-5311. The complainant recorded the said information in
compliance of Section 42 of the said Act and submitted the same
before his superior Officer. Under the instruction of the superior
Officer of DRI, a team of Officers and members and staffs of the DRI
was constituted to keep surveillance on Muzaffarpur-Darbhanga
Highway on 21st of January, 2016. On that day at about 8-10 a.m. in
the morning, the said team intercepted a truck bearing above-
mentioned Registration Number. There were Driver and a helper in
the said truck. They were served with notice under Section 50 of the
said Act informing inter alia that if they would want they might opt
for search of both, their truck and persons in presence of a Gazetted
Officer. However, they agreed to be searched at the spot where the
truck was intercepted by the team of DRI.
4. It is further reported by the complainant that during search
beside personal belongings, the raid party recovered huge quantity of
Cannabis (Ganja) from a specially built cavity made inside the
container of the said truck. As local people had assembled around the
place where the said truck was intercepted, the complainant
considered it safe to bring the truck and the driver and conductor to
the office premises of DRI, at Muzaffarpur. On search, the
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
complainant found 30 plastic sacks containing Cannabis wrapped in
newspapers and black plastic sheets. He marked the said packets by
identification mark No. 1 to 30. There were dark green coloured dry
leafy substances having smell of cannabis in the said sacks. The
weighment of the said sacks was taken and the net weight of the said
cannabis was found to be 448.40 kg. The complainant took samples
from the said sacks and prepared two packets of the said samples;
both the seized and sample packets of cannabis were sealed. The
complaint also recorded statement of the driver and conductor of the
truck under Section 67 of the said Act. After completion of search and
seizure, the appellants were arrested by the complainant. The arrest
memos of the appellants, seizure list, etc., were submitted to the
Senior Intelligence Officer, DRI, Patna, on 2 nd January 2016 by the
complainant. It was learnt from the statement of the appellants that
they were illegally and surreptitiously carrying the seized cannabis
from Assam to Muzaffarpur.
5. The appellants were put on trial. During trial, the prosecution
examined 7 witnesses. Signatures of the appellants over notices under
Section 50 of the said Act were marked as Annexure - 1 and 2 series
respectively. Arrest memos were marked as Exhibit 3 and 3/1. Other
documents, viz., seizure list memo, inventory, Panchnama,
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
forwarding report, seizure report, test report, signature of the testing
authority on test report, the written complaint and godown register of
the godown of DRI for the year 2016 were marked as Exhibit 3 to 15,
respectively. A sealed envelope of sample of the seized material was
marked as material Exhibit 1.
6. Mr. Krishna Prasad Singh, learned Sr. Advocate for the
appellants submits at the outset that since the punishment provided
under different penal provisions of the NDPS Act is very stringent,
the provisions of Sections 42, 50, 52, 52A, 55 and 57 of the said Act
have to be strictly complied with in order to safeguard the interest of
the accused/appellants. Non-compliance of these provisions goes to
the root of the case and vitiates the trial.
7. With the above prologue, it is submitted by the learned
counsel for the appellants that according to the prosecution, the truck
allegedly carrying huge quantity of cannabis was intercepted on
Muzaffarpur Darbhanga Highway near Mathi Toll Plaza in the district
of Darbhanga. It is found from the evidence of PW-1 Pradeep Kumar
Pandey, who was the complainant that they brought the said truck to
DRI office premises at Muzaffarpur which is situated at a distance of
about 30 kilometres away from the place where the said truck was
intercepted.
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
8. The learned Advocate for the Appellants has pointed out that
the prosecution has failed to assign any cogent reason as to why the
said truck was compelled to be driven a distance of about 30
kilometres from the place of interception.
9. Learned Advocate for the Appellants further submits that
according to the complainant the appellants were served with notices
under Section 50 of the said Act and their persons were searched at
the spot but in course of his evidence it is stated by the complainant
that the Appellants were individually searched in presence of one Mr.
Rakesh Ranjan, who is a Senior Intelligence Officer at Muzaffarpur.
10. Mr. Singh, also submits that the officers and staff of DRI
conducted search of the said container truck and recovered 30 bags of
cannabis wrapped in black coloured plastic sacks and paper. The said
narcotic substance was weighed and gross weight of the substance
was found to be 461.08 Kg and net weight was 448.40 kg. It is also
submitted by the learned counsel for the Appellants that the
complainant also deposed that he took small amount of seized articles
from each of the bags mixed them well and had kept the said articles
in two packets measuring about 24 grams each. The said packets
were sealed and labelled with identification letters A and B.
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
11. It is further urged by the learned Advocate for the
Appellants that P.W.-2 Rajeev Ranjan Pathak is a Senior Intelligence
Officer of DRI at Patna. P.W. 3, Rajesh Kumar and P.W. 4, Ramanand
Choudhary are Officers of DRI and P.W. 5, Rakesh Ranjan is the
Senior Intelligence Officer of DRI. P.W. 6 is a Constable of Excise
Department, who was posted on deputation in DRI at the relevant
point of time. P.W. 7, Parmanand Kumar is an Inspector of Custom
Duty Division, Muzaffarpur.
12. Deposition of P.W. 1, P.W. 2, P.W. 5 and P.W. 6 in their
examination-in-chief is almost similar with regard to interception of
truck, bringing the said truck to Muzaffarpur DRI Office, conducting
search, recovery of cannabis and preparation of seizure list and
samples etc.
13. It is also pointed out by the learned Advocate for the
Appellants that from the evidence of P.W. 2, it transpires that the said
truck was brought to Muzaffarpur DRI office because of the fact that
they sensed strong smell of cannabis from the container of the truck.
Therefore, it is absolutely clear that no search and seizure was made
at the place of interception of the truck. Under such circumstances, a
reasonable suspicion may be drawn that the same contraband articles
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
were intentionally planted inside the truck and subsequently it was
shown to have been recovered from the possession of the Appellants.
14. Learned Advocate for the Appellants next submits that
during trial, it was necessary for the prosecution to establish by
cogent evidence that cannabis were seized from the possession of the
accused. In the instant case, the contraband articles were not seized in
presence of the independent witnesses. All the seizure list witnesses
are the employees of DRI. Therefore, mandatory provision of Section
100 of the Cr.P.C., was violated during search and seizure of narcotic
substances. It is no longer res integra that in order to establish charge
under the N.D.P.S. Act, prosecution enjoins a boundened duty to
establish search and seizure without any iota of doubt. In the instant
case, there is no independent witnesses of search and seizure. At the
time of trial, the seized materials which were considered to be the
best evidence as per the decision of the Hon'ble Supreme Court in
Jitendra and Anr. Vs. State of M.P., reported in 2004 (10) SCC 562,
was not produced before the Trial Court for bringing them in
evidence. There is no explanation for this failure to produce them. It
is clearly held by the Hon'ble Supreme Court in the aforesaid
decision that mere oral evidence as to their features and production of
seizure list does not discharge the heavy burden which lies on the
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
prosecution, particularly where offence is punishable with stringent
sentence under the N.D.P.S. Act
15. Next limb of argument by the learned Advocate for the
Appellants is that the prosecution has hopelessly failed to carry out
the mandatory provision of Sub-section (2) of Section 52A of the
N.D.P.S. Act. Section 52 A (2) of the said Act runs thus:
"(2) Where any 4[narcotic drugs,
psychotropic substances, controlled
substances or conveyances] has been seized
and forwarded to the officer-in-charge of the
nearest police station or to the officer
empowered under section 53, the officer
referred to in sub-section (1) shall prepare an
inventory of such 4[narcotic drugs,
psychotropic substances, controlled
substances or conveyances] containing such
details relating to their description, quality,
quantity, mode of packing, marks, numbers
or such other identifying particulars of the 4
narcotic drugs, psychotropic substances,
controlled substances or conveyances or the
packing in which they are packed, country of
origin and other particulars as the officer
referred to in sub-section (1) may consider
relevant to the identity of the 4[narcotic
drugs, psychotropic substances, controlled
substances or conveyances] in any
proceedings under this Act and make an
application, to any Magistrate for the
purpose of--
(a) certifying the correctness of the inventory
so prepared; or
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
(b) taking, in the presence of such
magistrate, photographs of 5 such drugs,
substances or conveyances and certifying
such photographs as true; or
(c) allowing to draw representative samples
of such drugs or substances, in the presence
of such magistrate and certifying the
correctness of any list of samples so drawn."
16. It is submitted by the learned Advocate for the Appellants
that the above provision of Section 52A of the N.D.P.S. Act is a
mandatory provision inasmuch as the said provision was inserted in
the Act with a definite purpose, i.e., to prevent substitution of articles
seized by the concerned Officer of the Department. Non-compliance
of the provisions of Section 52A makes the entire search and seizure
vitiated.
17. It is pointed out by the learned Advocate for the Appellants
that even the scientific expert, who examined the sample allegedly
taken from the seized 30 nos. of bags of cannabis was not examined.
Therefore, the defence has lost its valuable right to cross-examine the
scientific expert. In such circumstances, scientific experts report
which was marked as Exhibit-10 at the instance of the complainant
ought not to have been taken into consideration by the learned Trial
Judge. The learned Trial Judge accepted the evidence adduced by the
witnesses on behalf of the prosecution as gospel truth without
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
adhering to the basic requirement of probe of a case under the
N.D.P.S. Act.
18. Learned Advocate on behalf of the DRI / Respondents, on
the other hand submits that Section 53 of the N.D.P.S. Act empowers
the Central Government after consultation with the State Government
to invest any Officer of the Department of Central Excise, Narcotics,
Customs, Revenue Intelligence or any other Department of the
Central Government including Para-military Forces or Armed Forces
or any class of such Officers with the powers of Officer an In-charge
of a Police Station or the investigation of the offences under the
N.D.P.S. Act. Therefore, the Revenue Intelligence Officers are
enjoined with the power of Officer In-charge of a Police Station
insofar as search, seizure and investigation of the offences under the
N.D.P.S. Act. However, it has been established in plethora of
decisions by different High Courts that the said Officers of Revenue
Intelligence Directorate are not Police Officers. Therefore, statement
recorded by the Officers of DRI of the accused persons are
admissible in evidence and on the basis of such statement, the
accused persons / Appellants were rightly held guilty for committing
offence under the relevant provision of the N.D.P.S. Act.
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
19. It is further submitted by the learned Advocate for the
Respondents that the requirement of seizure in presence of the
independent witnesses and compliance of Section 100 of the Code of
Criminal Procedure comes into play when search and seizure is made
in a house or godown, confined by walls on four sides. Search of
vehicle on an open filed does not postulate the requirement of Section
100 of the Code of Criminal Procedure.
20. Having heard the learned Advocates on behalf of the parties
and on careful perusal of the entire materials on record, we are of the
view that the power and authority of the Officers, especially
empowered under Section 53 of the N.D.P.S. Act ought to be decided
first in order to come to a conclusive findings as to whether they are
enjoining certain immunities in comparison to the Police Officers.
The Officer empowered under Section 53 shall have all the powers of
an Officer In-charge of Police Station investigating a cognizable case.
But these powers are only limited for the purpose of investigation.
Therefore, it is apparent that considering seriousness of the offence,
the Legislature thought that apart from investigation by the Police
under the Code of Criminal Procedure, some other Officers
mentioned in Sections 41, 42, 43 and 53 be empowered to discharge
certain duties as specified therein. But this does not mean that a
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
Police Officer who is investigating the offence under the said Act is
not required to follow the procedure prescribed under the Code of
Criminal Procedure. He has to investigate in accordance with the
provisions of the Code of Criminal Procedure. To the other Officers,
limited powers are given. Under Section 53, the Central Government
or the State Government, as the case may be, is entitled to invest any
Officers of the Department mentioned therein with the powers of an
Officer In-charge of Police Station for the investigation of the offence
under the Act. It would be, thus, clear that if a competent Police
Officer has investigated the offence under the Act, there is no
question of following any procedure other than the procedure
prescribed under the Code of Criminal Procedure. Similarly, the
Officers especially empowered under Section 53 of the said Act, is
under obligation to follow the procedure contained in the Code of
Criminal Procedure in the matter of investigation. It is needless to say
that the Officers especially empowered under Section 53 is required
to follow the specific requirements of the Code of Criminal
Procedure in respect of search and seizure. In the instant case, the
complainant and his team of DRI failed to follow the said procedure.
21. The Officers of the DRI are not absolved with the duty of
production of seized narcotic substance before the Magistrate for
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
certifying the correctness of inventory and drawing representative
samples of such substance in presence of such Magistrate and
certifying the correctness of any list or sample so drawn. These
mandatory provisions were not followed in the instant case.
Therefore, there is reasonable ground to suspect as to whether, the
samples were taken from the seized cannabis or if any narcotic
substance was recovered from the said container of the truck or at all.
22. We are surprised to note that the learned Trial Judge did not
wish to consider the decision of the Hon'ble Supreme Court in the
case of Union of India Vs. Mohanlal and Anr., reported in 2016 (3)
SCC 379. Paragraph 15 of the said report is absolutely relevant for
the purpose of this case and reproduced below:
"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.1322 of 2018 dt.08-12-2023
23. In the instant case, the prosecution Agency failed to comply
with the provision of Section 52A (2)(c) of the said Act. Therefore,
preparation of sample bags, transmitting the same for scientific
examination and report thereof had not been proved beyond shadow
of doubt. The learned Trial Judge did not wish to consider the
decision of Mohanlal (supra) because the said decision was delivered
on 28th January, 2016 and according to him at the relevant point of
time the provision contained in Section 52A (2)(c) was not
applicable. It is sufficient to point out in this regard that a judgment
of the higher Courts has the authority having retrospective effect.
Therefore, a decision of the Hon'ble Supreme Court cannot be ruled
out merely by saying that the declaration of law made by the Hon'ble
Supreme Court is not applicable in view of its prospective nature.
The declaration of law made by the higher Courts will always have
retrospective effect. The decision of the Hon'ble Supreme Court in
Manoj Parihar vs. State of Jammu & Kashmir, reported in (2022)
14 SCC 72 may be relied on in this regard.
24. Before we part with, we have noticed a disturbing feature in
the instant appeal. It is not clear from the record of the Appellate
Court as well as the Lower Court as to whether the contraband
articles have been destroyed or not. If the contraband articles are not
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
destroyed as yet, it is a serious lapse on the part of the Investigating
Agency because storing of such huge quantity of cannabis in a
godown may have serious consequences if it becomes somehow open
for human consumption. In such case, the entire purpose of the
Narcotic Drugs and Psychotropic Substances Act will be frustrated.
25. For the reasons stated above, the Director of the DRI, Patna
is specifically directed to destroy the seized articles within one month
from the date of communication of this order, following specific
provisions of the Act, if not already destroyed.
26. In view of the aforesaid facts and circumstances, both these
appeals are allowed.
27. Consequently, the judgment dated 21st July, 2018 and order
of conviction and sentence dated 24th July, 2018, passed by the
learned 1st Additional District and Sessions Judge, Muzaffarpur in
Trial No. 06 of 2018 (Arising out of DRI Case No. 51 of 2016),
sentencing the Appellants for committing offence under Sections
20(b)(ii)(c) and 25 of the Narcotic Drugs and Psychotropic
Substances Act, 1985, are set aside.
28. The Appellant of Cr. Appeal (DB) No. 1322 of 2018, namely,
Naubat Ram, is in jail. Let him be released forthwith, if not required
in any other matter.
Patna High Court CR. APP (DB) No.1322 of 2018 dt.08-12-2023
29. The Appellant of Cr. Appeal (DB) No. 1087 of 2018, namely,
Bhikam Singh @ Bikam Singh, is on bail. He is discharged from the
liability of the bail bonds and the sureties, if any.
(Bibek Chaudhuri, J)
Chakradhari Sharan Singh, J : I agree.
(Chakradhari Sharan Singh, J)
skm/-
AFR/NAFR NAFR
CAV DATE 05.12.2023
Uploading Date 11.12.2023
Transmission Date 11.12.2023
