Nashima And Anr vs The State Of Bihar
2023 Latest Caselaw 1201 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.172 of 2018
        Arising Out of PS. Case No.-22 Year-2015 Thana- BOCHAHAN District- Muzaffarpur
     ======================================================

1. Nashima and Anr Wife of Md. Alam, Resident of Village- Baretha Khijarpur, P.S.- Mahanther, District- Muradabad, Uttar Pradesh.

2. Shama, Wife of Md. Meenjar, Resident of Village- Lalbara, P.S.- Shabaj, District- Rampur, Uttar Pradesh.

... ... Appellant/s Versus

The State of Bihar .. ... Respondent/s ====================================================== Appearance :

     For the Appellant/s    :        Mr. Ajay Kumar Thakur, Advocate
                            :        Mr. Inteyar Ahmad, Advocate
                            :        Mr. Ritwik Thakur, Advocate
                            :        Mrs. Vaishnavi Singh, Advocate
                            :        Mr. Udbahv Singh, Advocate
                            :        Mr. Ansul, Advocate
     For the Respondent/s   :        Mr. Ashwani Kumar Sinha, Advocate
     For the State          :        Mr. Abhimanyu Sharma, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA)

Date : 28.03.2023 Heard learned counsel appearing for the appellants

as well as learned APP for the State.

2. The present appeal preferred by both above named

appellants/convicts challenging the judgment of conviction

dated 09.01.2018 and order for sentence dated 15.01.2018

passed in Session Trial arises out of Bochhahan P. S. Case No.

22/15, whereby and whereunder learned Additional Sessions

Judge, 8th, Muzaffarpur convicted the appellants under Sections Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

20(b)(ii)(c) and 29 of N.D.P.S. Act and has sentenced them to

undergo rigorous imprisonment for 16 years with fine of Rs. 2

lakhs each and in failure to pay fine appellants/convicts to

undergo additional sentence of two years of imprisonment.

3. As per summarised case of prosecution, a secret

information was received by Shambhu Kumar, S.H.O.

Bochhahan (PW -10) on 09.02.2015 at about 4:20 AM, that two

trucks bearing Nos. JH 09C/6077 and HR 55M/1312 are going

towards Muzaffarpur crossing Darbhanga, where each of trucks

are loaded with "Ganja" having one female alongwith two

children sitting inside. The said secret information was

immediately given to area Magistrate i.e., Block Development

Officer, Bochhahan (PW-11) with a request to join at police

station from where informant (PW-10) alongwith area

Magistrate (PW-11), A.S.I. Angad Tiwari (PW-5), A.S.I.

Jitendra Singh (PW-6), ladies constable no. 1168 Meena Devi

(not examined), Armed Police (S.A.F.) No. 7970 namely,

Sundar Bhagwan Singh (PW-3), SAF Police Force No. 4453

Girdhari Gujar (PW-4) and SAF Police Force No. 333 Ajay

Shankar Sharma (PW-2)

proceeded to verify the said secret input at about 4:30 AM from

police station. While aforesaid team arrived at Majhauli Chowk Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

about hundred yards east of NH 57, the driver of both vehicles

by taking benefit of darkness and fog run away, leaving their

trucks on spot, where, two females alongwith four children

found sitting inside the trucks, who disclosed their names before

area Magistrate as Nashima, aged about 30 years, wife of Md.

Alam resident of Baretha Khijarpur, P.S. Manather,

District- Muradabad, Uttar Pradesh and secondly, Shama, aged

about 25 years wife of Md. Meenjar, village- Lalbara,

P.S.- Shabaj, District- Rampur, Uttar Pradesh. Both ladies

(appellants/convicts) were asked by Area Magistrate (PW-11) to

disclose the name of materials giving scent as "Ganja", but as

they remain mum, it was ordered to check the vehicle, where

substances appearing like "Ganja" recovered in several packets.

The seizure list of said seized "Ganja" like substance was

prepared in presence of Block Development Officer (PW- 11).

As per seizure, 56 packets wrapped in blue colour plastic

bundles were recovered from vehicle no. JH 09C/6077, whereas

31 packets wrapping in black colour plastic and 3 packets

wrapped in green plastic were recovered from vehicle No. HR

55M/1312. Subsequent to seizure, Block Development Officer

(PW-11) asked to appellants/convicts to produce relevant

documents, where upon non-production of documents, as asked Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

for, both appellants/convicts were taken into custody.

4. Upon direction of Block Development Officer (PW-

11), the present case was registered under Sections 20(b)(ii)

(c)/22/29 of N.D.P.S. Act and 120B/34 of Indian Penal Code

against both appellants/convicts and the drivers of both vehicles,

who were run away, leaving the trucks on spot.

5. After investigation, charge-sheet was submitted

against appellants/convicts, where the charges were framed by

learned Trial Court on 06.04.2016 under Section 20(b)(ii)

(c)/22/29 and 120B/34 of Indian Penal Code against both

appellants/convicts, where both appellants/convicts pleaded "not

guilty" and claimed trial, leading their conviction u/s 20(b)(ii)

(c)/22/29 of Indian Penal Code for sixteen years with fine of Rs.

2 lakhs. Appellants/convicts were acquitted for the charges as

framed u/s 120(B) and 34 of Indian Penal Code.

6. Hence, the present appeal.

7. To establish its case before the learned Trial Court,

prosecutions altogether examined total of 11 witnesses, namely,

PW 1- Jitendra Kumar, PW 2- Abhay Shankar Sharma, PW 3-

Sundar Bhagwan Singh, PW 4- Girdhari Gurjar, PW 5- Angad

Tiwary, PW 6 - Jitendra Kumar Singh, PW 7- Siyaram Singh

(Investigating Officer), PW 8- Devendra Sahni, PW 9- Deepak Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

Kumar, PW 10 - Shambhu Kumar Bhagat (Informant) and PW

11- Raviranjan Kumar Bhagat (Area Magistrate, BDO

Bochhahan).

8. The prosecutions also exhibited the following

documents during the trial which are as:

1. Exhibit 1- Statement

2. Exhibit 2, 2/1, 2/3 - Signature of Seizure

list witnesses

3. Exhibit 3 - Signature of Shambhu Kumar

Bhagat, S.H.O., Bochhahan P.S. on the for-

mal F.I.R.

4. Exhibit 4, 4/1 - Signature of Siya Ram

Singh, A.S.I., on the application dated

01.04.2015 addressed to the District and Ses-

sions Judge seeking permission to send con-

traband to FSL

5. Exhibit 5, 5/1 - Forwarding of Special

Judge, Muzaffarpur

6. Exhibit 6 - Test Report

7. Exhibit 7 - Forensic Report

9. During the course of trial, five witnesses were also

examined in defense as:

Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

1. DW 1 - Ajeet Kumar

2. DW 2 - Md. Ateek

3. DW 3 - Md. Shamshul

4. DW 4 - Md. Azaad

5. DW 5 - Vipin Kumar

10. PW-1, Jitendra Kumar, who is working as an

electrician claimed to be acquainted with the writing of

Shambhu Kumar Bhagat (PW-10), who is the informant of this

case. He identified hand written complaint, signature and short

signature of PW-10, which were exhibited before the learned

Trial Court as Exhibit 1, 2 and 3 respectively. He categorically

submitted that he never worked with PW-10 and has no personal

knowledge regarding contents of the written complaint. He also

shows his complete ignorance about seizure.

11.PW-2 is Abhay Shankar Sharma, PW-3 is Sundar

Bhagwan Singh and PW-4, namely, Girdhari Gurjar all were the

member of patrolling team. It is deposed by PW-2 that he

alongwith other prosecution witnesses, while on patrolling duty

and moving towards Dharbhanga found that one truck

appears collided back to back, giving an impression of accident,

where taking occurrence as an accident, PW-6 being driver of

patrolling vehicle went up to trucks and found 2-3 packets lying Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

below one truck and 10-15 packets lying below another truck.

He clearly refused to identify anyone. During

cross-examinations, PW-2 stated that packets were torn by

people and it was containing of "Ganja" and affirmed the

version of prosecution that recovery was made from both the

trucks, PW-3, namely, Sundar Bhagwan Singh stated that

occurrence is of 15th January, he stated to locate container and

driver while he was on patrolling duty and also stated that first

of all PW-6 visited the place of occurrence and subsequently,

they went there and found packets, where he came to know later

that it was containing "Ganja", he refused to see anything more

as he stated, in cross examination, it was stated by him that truck

container was open.

12. PW-4 is Girdhari Gurjar, who stated that

occurrence is of 22nd day of month (without disclosing the name

of month). He also stated that they were on patrolling duty

alongwith PW-6 and other police persons. He stated that there

was a container and one truck with packets of "Ganja"

alongwith two ladies and children, he failed to identify the ladies

(appellants/convicts) before the learned Court. In cross

examination, he stated that he was informed that container was

containing of "Ganja".

Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

13. PW-5 is Angad Tiwari, who deposed that

occurrence is of February, 2015. It is deposed by him that time

was 11 PM and the container was loaded with "Ganja" which

was in process of unloading. He also deposed that two ladies

alongwith four children were found inside the vehicle. It is also

deposed by him that seizure of "Ganja" was prepared which was

total of 5.6 quintals. It is also deposed that the witnesses signed

the seizure list on spot and the seized "Ganja" were found in

green and black packets. He identified appellants/convicts

before the learned Trial Court. On cross examination, he

deposed that no TIP was conducted and he is also not

remembering the number of container or any vehicles. He also

failed to depose that who were involved in loading and

unloading. It is also deposed that during search and seizure,

several people of nearby localities arrived at the place of

occurrence and further he is unable to produce the relevant

papers related with raid, before learned Trial Court.

14. PW-6 is Jitendra Kumar Singh, who deposed

that occurrence took place in early morning of 9 th of February,

2015 at about 04:00 AM, where he failed to depose the name of

B.D.O. Bochhahan (PW-11) but said that he was accompanied

with S.H.O. Shambhu Prasad (PW-10), A.S.I. Angad Tiwari Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

(PW-5) and ladies constable Meena Devi (not examined). He

deposed that as they arrived close to Majhauli Chowk, they

found that one truck having big closed container with open gate

was found standing very close to one big size truck in back to

back position. He also deposed that the "packet of 10 Kg" was

in loading process with container, where the "Ganja" was of 90

packets. He also affirmed the presence of two ladies and

children inside the container but failed to depose about exact

number of children as whether they were two or three. He also

deposed that one of the ladies disclosed her name as Nashima

(applicant/convict) whereas another disclosed her name as

Shama (applicant/convict) but failed to recollect the name of

public witnesses. It further appears from his depositions that the

container was searched in his presence, where after opening the

packet of "Ganja" seizure list was prepared by S.H.O. (PW-10)

and B.D.O. (PW-11). He further deposed that both trucks, ladies

and children were brought to police station alongwith seized

"Ganja". He identified both appellants/convicts before the

learned Trial Court. On cross examination, he deposed that he

was the member of raiding team and not participated in

investigation. He also stated that he has no idea about TIP. He

also failed to depose the registration no. of truck and container. Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

He failed to produce documentary evidence suggesting that he

was the member of raiding team.

15. PW-7 is Siyaram Singh, who is an

investigating officer of this case and recorded restatement of

informant (PW-10), B.D.O. (Area Magistrate, PW-11), A.S.I.

Angad Tiwari (PW-5), A.S.I. Jitendra Singh (PW-6), three

S.A.Fs. constables, namely, Sundar Bhagwan Singh (PW-3),

Girdhari Gujar (PW-4) and Ajay Shankar Sharma (PW-2) and

Meena Kumari (not-examined). He stated further that the

statement of appellants/convicts, namely, Nashima and Shama

was obtained after being allured them. He also recorded the

statement of seizure list witnesses, namely, Devendra Shahni

(PW-8) and Deepak Kumar (PW-9). It is also deposed by him

that seized 90 packets containing 9 quintals of "Ganja" was

produced before the Court and thereafter, all those packets were

taken back to police station. It is further stated that sample

taken as report 1, 2 and 3 were sent for forensic science

laboratory, Patna and Customs House, Kolkata for

examinations. He also stated that the number of two trucks were

HR 55M/1312 and JH 9C6077. He also identified his signature

on application given to Sessions Judge for sample examinations

which were identified before the learned Trial Court and Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

exhibited as Exhibit 4 and 4/1. He further identified his hand

writing contents and signature over sample which were sent to

Patna and Kolkata and same were exhibited as Exhibit 5 and 5/1

before learned Trial Court and also identified test memo

suggesting that all nine quintals "Ganja" was brought before the

learned Trial Court which were exhibited as Exhibit 6 before

the learned Trial Court. On cross-examination, he deposed that

the statement of appellants/convicts was recorded in defense and

was not in nature of confessional statement. He was again

recalled for cross examination on 03.11.2016 where he stated

that he was not the part of raiding team and nothing was

recovered before him. He deposed that at first glance he saw

the seized item at police station and thereafter at the place of

occurrence. He also deposed that some of packets were in torn

condition and found open but detailed of the same was not

recorded. It is also stated that the packets were of green and

black colour. It is also deposed that sample was sent after

15-20 days of recovery which was weighing about 30 grams,

where no forensic report was received by him before submitting

the chargesheet and as seized substance scented as "Ganja",

assuming that same is "Ganja" charge-sheet was submitted.

16. PW-8, namely, Devendra Shahni and PW-9, Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

namely Deepak Kumar, both are seizure list witnesses who were

identified their signature over seizure list which were exhibited

as Exhibit No. 2/1 and 2/2 before learned Trial Court and on

cross-examination , they categorically stated that incharge police

station/Daroga obtained his signature on plain paper at police

station in early morning about 7-8 AM. It is also categorically

deposed that no material was seized before them.

17. PW-10 is informant of this case, namely Shambhu

Kumar Bhagat who stated before the learned Trial Court that

occurrence is of 09.02.2015 and time was about 4 AM, when on

receiving the secret information, he informed the B.D.O.

Bochhahan (PW-11) and seized 56 packets of blue colour

packets from a truck having registration no. of Jharkhand and

also found one lady alongwith two children. He also deposed to

recovery of 31 bundle packets of green colour from a truck

bearing registration no. of Haryana State. He also stated that on

the direction of B.D.O. (PW-11) both vehicles were searched,

where, "Ganja" like substance was recovered. It is also stated

that both ladies were arrested by following the rules, and also

identified his signature on seizure list, which is already

exhibited as Exhibit No. 2. He also identified the signature of

B.D.O. (PW-11), which is already exhibited as Exhibit 2/3. He Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

also identified his hand writing and signature of written

complaint, which also found exhibited as Exhibit No. 1. He

also affirmed his signature over formal F.I.R. On cross

examination, he stated that information was given to D.S.P. and

S.S.P. of the area but no one arrived at the place of occurrence.

It is stated that the B.D.O. (PW-11) arrived on the direction of

S.S.P. It is also stated that trucks were in standing conditions

and was not stopped by them. He also deposed that witnesses

were called from nearby locality.

18. PW-11 is the B.D.O., namely Ravi Ranjan, who is

the Area Magistrate deposed before the learned Trial Court that

on information received from PW-10, namely, Shambhu Bhagat,

who is the informant of this case, he arrived at place of

occurrence in early morning of 09.02.2015 at about 4:30 AM.

He clearly stated that two trucks were standing very close by

their back to back having also of two ladies and four children. It

is stated by him that the packet was secretly kept inside the truck

in plastic packets which were seized and brought to police

station. He also failed to depose the name of

appellants/convicts. He affirmed that seizure list prepared on

spot and also identified his signature on the seizure list, which is

already exhibited before the learned Trial Court as Exhibit No. Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

2/3, the weight of seized packets was done at police station

which was found as more than 9 quintals. On cross-examina-

tion, he deposed that he never made any statement before the

police and not recorded any statement of appellants/convicts.

He also deposed that save and except putting his signature on

seizure list, he did nothing.

19. After closure of the prosecution case, the

statement of appellants/convicts were recorded under Section

313 of the Code of Criminal Procedure, where they claimed

complete innocence by denying all incriminating circumstances

put before them.

20. The defense adduced total of five witnesses in

support of their innocence, where all witnesses starting from

DW-1 to DW-5 deposed suggesting the innocence of

appellants/convicts and stated that both appellants/convicts took

a lift from the driver of trucks alongwith their children for

Muzaffarpur, as they failed to get a bus for Muzaffarpur from

Darbhanga bus stand.

21. After the closure of prosecution and defense

evidence, argument was heard as advanced on behalf of the

appellants by learned Trial Court, where vide impugned

judgment dated 09.01.2018 both the appellants were held guilty Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

for the offense punishable under Section 20(b)(ii)(c) and 29 of

N.D.P.S. Act, consequently, both of them were sentenced vide

impugned order dated 15.01.2018, for 16 years rigorous

imprisonment and fine of Rs. 2 Lakhs.

22. The learned counsel Mr. Ajay Thakur while

assailing the impugned judgment of conviction which is the

subject matter of present appeal submitted that seized articles

have not been produced during trial and no any explanation has

been furnished by the prosecution for non production of same

during the trial. In support of his submissions, he relied upon

the report of Hon. Supreme Court as reported in the matter of

Vijay Jain vs. State of M.P. (2013) 14 SCC 527. It is also

submitted that both seizure list witnesses i.e., PW-8 and PW-9

categorically submitted that nothing was seized before them and

their signatures were obtained on plain paper that too, in early

morning at about 7-8 AM much after the seizure. It is further

submitted that though these witnesses were not declared hostile

by the learned Trial Court but it is very apparent from their

depositions (PW-8 and PW-9) that nothing as alleged by the

prosecutions was seized before them and in support of

submissions he relied upon the report of Hon. Supreme Court as

reported in the matter of Gorakhnath Prasad vs. State of Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

Bihar (2018) 2SCC 305. The learned counsel also relied upon

the report of Amirul Rahman vs. Union of India Cr. Appeal

No. 1945/22 (SLP Cr. No. 8086/21) disposed of on 10.11.2022.

It is also submitted by Mr. Thakur that the information received

by informant was never reduced in writing and it was not

immediately transmitted to superior officer, within 48 hours next

after arrest or seizure. It is also submitted that compliance of

Section 42, 52A and 57 of N.D.P.S. Act appears not to be

followed in present case, benefit of which must go with

appellants/convicts. In support of submissions, the learned

counsel place a reliance on the report of Hon. Supreme Court as

reported in the matter of Karnal Singh vs. State of Haryana

(2009) 8 SCC 539. While concluding the argument, it is

submitted by Mr. Thakur that from the perusal of deposition of

PW-1, PW-2, PW-3 and PW-10, it appears that their statement is

not even in consistent with time and date of occurrence. It is

also submitted that the seized packets were found in torn

condition. Learned counsel also submitted that the compliance

of standing "order 1 of 88" issued by Narcotic Control Bureau

was also not followed in present case and on this ground alone

the appellants/convicts may be acquitted, where reliance was

made upon the report of Hon. Supreme Court reported as U.P. Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

vs. Hansraj (2018) 18 SCC 355.

23. Per contra, Mr. Abhimanyu Sharma, learned

Additional Public Prosecutor appearing for State contended that

the witnesses examined during the trial are consistent. It is

submitted that informant (PW-10) has fully corroborated the

prosecution case as narrated in the F.I.R. during the trial. It is

submitted that the "Ganja" was seized at the place of occurrence

and minor contradictions, if any, appears in the evidence of the

witnesses, same are not so vital, on the basis of which

conviction of appellants be looked with tented glass.

24. Taking note of the submission of learned APP as

made above, Mr. Thakur, learned counsel appearing on behalf of

the appellants/convicts further submitted that no evidence

adduced during the trial that seized contraband was ever kept in

Malkhana, rather it was kept in police station. He argued that

the contradictions amongst deposition of witnesses cannot be

said minor, as even the parties of raiding team are not appears

consistent regarding quantity of "Ganja", its seizure and

sampling.

25. Upon hearing the learned counsel for the

respective parties and perusal of the records, we find forces in

the argument as raised on behalf of the appellants/convicts as it Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

is clearly appearing from the deposition of PW-7, namely, Siya

Ram Singh, who is the investigating officer of this case that the

packet containing contraband was taken back to police station, it

not appears from his examination that it was ever produced

before the learned Trial Court during the course of trial. It also

appears that the sample was sent with delay of 15-20 days for its

forensic examination.

26. This Court, while dealing on the subject of

non-production of seized contraband before the learned Trial

Court would like to reproduce the relevant Paragraph of

Judgment of Vijay Jain Case (Supra), for better appreciation

and understanding of present case, where ratio of Jitendra v.

State of M.P., reported in (2004)10 SCC 562 and of Ashok v. State

of M.P., reported in (2011) 5 SCC 123 were also taken into

consideration.

Para-10 of the judgment speaks as:-

10. On the other hand,

on a reading of this Court's

judgment in Jitendra case, we find

that this Court has taken a view

that in the trial for an offence un-

der the NDPS Act, it was necessary

for the prosecution to establish by Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

cogent evidence that the alleged

quantities of the contraband goods

were seized from the possession of

the accused and the best evidence

to prove this fact is to produce

during the trial, the seized

materials as material objects and

where the contraband materials

alleged to have been seized are not

produced and there is no

explanation for the failure to

produce the contraband materials

by the prosecution, mere oral

evidence that the materials were

seized from the accused would not

be sufficient to make out an offence

under the NDPS Act particularly

when the panch witnesses have

turned hostile. Again, in Ashok

this Court found that the alleged

narcotic powder seized from the

possession of the accused was not

produced before the trial Court as

material exhibit and there was no Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

explanation for its non-production

and this Court held that there was

therefore no evidence to connect

the forensic report with the

substance that was seized from the

possession of the appellant.

27. Coming to the next submission made on behalf

of the appellant regarding the illegality of the sampling of the

seized contraband, it is manifest from the evidence that the rep-

resentative samples were not drawn from the seized substance

and sent to the expert in the designated laboratory for chemical

analysis and report in accordance with law. It would also be

evident from the evidence that the seized substance and the

samples were not handled properly in the prescribed manner.

28. Standing Instruction "No. 1 of 1988" dated

15.03.1988 of Narcotics Control Bureau, Government of India

issued under Section 52 of the N.D.P.S. Act prescribes the de-

tailed procedure for sampling, sealing and despatching the

seized sample to the laboratory for test. Clauses 1.4, 1.5, 1.6 and

1.9 of the Standing Instruction No. 1 of 1988 dated 15.03.1998

read as under:

"1.4 If the drugs seized are

found in packages/containers, the Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

same should be serially numbered

for purposes of identification. In

case the drugs are found in loose

form, the same should be arranged

to be packed in unit containers of

uniform size and serial numbers

should be assigned to each pack-

age/ container. Besides the serial

numbers, the gross and net weight,

particular of the drug and the date

of seizure should invariably be

indicated on the packages. In case

sufficient space is not available for

recording the above information on

the package, a Card Board label,

should be affixed with a seal of the

seizing officer and on this Card

Board label, the above details

should be recorded.

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 Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

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

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.

1.9 It needs no emphasis that

all samples must be drawn and

sealed; in the presence of the ac-

cused, Panchnama witnesses and

seizing officer and all of them shall

be required to put their signatures

on each sample. The official seal of

the seizing officer should also be af-

Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

fixed. If the person, from whose cus-

tody the drugs have been recovered,

wants to put his own seal on the

sample, the same may be allowed

on both the original and the duplic-

ate of each of the samples."

29. The question as to whether or not the compli-

ance of the guidelines issued by Standing Instruction No. 1 of

1988 would vitiate the trial was considered by the Hon'ble Su-

preme Court in Khet Singh Vs. Union of India since reported

in AIR 2002 SCC 1450, Noor Aga Vs. State of Punjab since

reported in (2008) 16 SCC 417 and Union of India Vs.

Balmukund and others since reported in 2012 (9) SCC 161.

30. In Khet Singh (supra) after examining the said

issue the Hon'ble Supreme Court held in para 10 as under:

"10. The instructions

issued by the Narcotics Control

Bureau, New Delhi are to be fol-

lowed by the officer in-charge of the

investigation of the crimes coming

within the purview of the NDPS Act,

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 Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

by the officer in-charge of the in-

vestigation......."

31. In Noor Aga (supra) after giving thoughtful

consideration to the guidelines issued under the N.D.P.S. Act in

the Standing Order the Hon'ble Supreme Court observed in

paras 89 to 91 as under:

"89. Guidelines is-

sued should not only be substan-

tially complied, but also in a case

involving penal proceedings,

vis-à-vis a departmental proceed-

ing, 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 therefore, it becomes oblig-

atory 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 Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

decision of this Court in Union of

India v. Azadi Bachao Andolan

[(2004) 10 SCC 1] held that

statutory instructions are manda-

tory in nature.

91. The logical corol-

lary 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 in-

sisted upon for so that sanctity of

physical evidence in such cases re-

mains 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."

32. In Union of India versus Balmukund (supra),

the Hon'ble Supreme Court observed in para 36 as under:

"36. There is another as-

pect of the matter which cannot also

be lost sight of. Standing Instruction

1/88 which has been issued under Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

the Act, lays down the procedure of

taking samples. The High Court has

noticed that P.W.7 had taken

samples of 25 gm each from all the

five bags and then mixed them and

then sent to the laboratory. There is

nothing to show that adequate

quantity from each bag had been

taken. It was a requirement of law."

33. One of the most important provision i.e. Sec-

tion 52-A of the N.D.P.S. Act has been made for the disposal of

the seized Narcotic Drugs and Psychotropic Substances. The

said provision requires preparation of an inventory of the seized

property in presence of the Magistrate after taking photographs

and certifying such photographs to be true and allowing to draw

representative samples of such drugs and substances in the pres-

ence of such Magistrate and certifying the correctness of any list

of sample so drawn. In case the aforesaid procedure is followed

notwithstanding anything contained in the Code of Criminal

Procedure, every court trying an offence under the N.D.P.S. Act

is required to treat the inventory, the photographs of Narcotic

Drugs or Psychotropic Substances and any list of samples drawn

and certified by the Magistrate as primary evidence in respect of

such offence.

Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

34. In the instant case, it has rightly been pointed

out by Mr. Thakur, learned counsel for the appellant that the pro-

cedure prescribed under Section 52-A of the N.D.P.S. Act has

not been followed.

35. In absence of the proof regarding disposal of the

contraband in accordance with law, the prosecution was required

to produce the contraband before the court. However, the seized

contraband was never produced before the court during trial. In

absence of any evidence relating to disposal of the seized prop-

erty and the production of the seized property in the court, it

cannot be held that any seizure of contraband was made from

the possession of the appellant.

36. In this regard, the appellant has rightly placed

his reliance on the judgment of the Hon'ble Supreme Court in

Jitendra and Another Vs. State of M.P. reported in (2004) 10

SCC 562. In the said case, in paragraph '6', the Hon'ble Su-

preme Court held as under:-

"6. In our view, the view

taken by the High Court is unsus-

tainable. In the trial it was neces-

sary for the prosecution to establish

by cogent evidence that the alleged

quantities of charas and ganja were

seized from the possession of the ac-

Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

cused. The best evidence would have

been the seized materials which

ought to have been produced during

the trial and marked as material ob-

jects. There is no explanation for

this failure to produce them. Mere

oral evidence as to their features

and production of panchnama does

not discharge the heavy burden

which lies on the prosecution, par-

ticularly where the offence is punish-

able with a stringent sentence as un-

der the NDPS Act. In this case, we

notice that panchas have turned hos-

tile so the panchnama is nothing but

a document written by the police of-

ficer concerned. The suggestion

made by the defence in the cross-ex-

amination is worthy of notice. It was

suggested to the prosecution wit-

nesses that the landlady of the house

in collusion with the police had

lodged a false case only for evicting

the accused from the house in which

they were living. Finally, we notice

that the investigating officer was

also not examined. Against this

background, to say that, despite the Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

panch witnesses having turned hos-

tile, the non-examination of the in-

                                         vestigating          officer    and

                                         non-production of the seized drugs,

                                         the conviction under the NDPS Act

                                         can    still    be      sustained,    is

                                         far-fetched."

37. Similarly in Vijay Jain (supra), the Hon'ble

Supreme Court in para '12' held as under:-

"12. We are thus of

the view that as the prosecution has

not produced the brown sugar before

the Court and has also not offered

any explanation for non-production

of the brown sugar alleged to have

been seized from the appellants and

as the evidence of the witnesses (PW

2 and PW 3) to the seizure of the ma-

terials does not establish the seizure

of the brown sugar from the posses-

sion of the appellants, the judgment

of the trial court convicting the ap-

pellants and the judgment of the

High court maintaining the convic-

tion are not sustainable."

38. Before we conclude, we must record our dis-

Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

pleasure regarding the manner in which the trial court recorded

the statement of the appellant under Section 313 of the Code of

Criminal Procedure. The only question asked from the appellant

was as under:-

Q.1 Whether you heard

the witnesses.

Ans- Yes

Q.2 "There is evidence

against you that on 4th of February,

2015 at about 4.00 A.M. 90 packets

weighing 900 Kg Ganja were re-

covered from a truck in which you

found sitting at village- Majhauli

Chawk, NH-57, Distt- Muzaffarpur,

what you have to say.

Ans- No.

Q.3 Anything in defence.

Ans- I am innocent.

39. It is well settled that the object of Section 313

of Code of Criminal Procedure is to enable the accused to ex-

plain the circumstances against him in evidence so that he may

submit his explanation to those circumstances personally as also

his stand with regard the circumstances in evidence which have

been collected against him and has come on record during trial.

If the questions on incriminating circumstances have been ig- Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

nored by the trial court then it is an illegality which amounts to

an abuse of the process of the court. The question under Section

313 of the Code of Criminal Procedure should not be treated as

an empty formality as it is an important facet of the trial.

40. In the present case, the appellants were never

informed the following incriminating circumstances by the trial

court: (a) that a seizure memo of the contraband recovered was

prepared; (b) that the seized packets were produced before the

Police Station at Bochhahan; (c) that the articles recovered were

kept in the almirah of the Police Station; (d) that a sample of

contraband was drawn; (e) that the sample was sealed; (f) that

the sample was sent to the FSL for test; and, (g) that the FSL re-

port shows that the substance sent to the FSL was found to be

Ganja.

41. Thus, it would be evident that the appellants

were never informed of the circumstances appearing against

them during trial. They did not have any chance to explain them.

42. We are of the considered view that these cir-

cumstances which were not put to the appellant during trial

could not have been used against him for conviction and sen-

tence.

43. Based on the aforesaid analysis of the evidence Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

and law, we are of the view that the entire investigation of the

case was perfunctory. The defects in investigation are substantial

and go to the root of the identity of the alleged contraband

Ganja alleged to be recovered from the possession of the appel-

lant. The glaring lapses on the part of the prosecution during in-

vestigation would certainly affect the credibility of the prosecu-

tion case. The case of the prosecution is based only on the oral

testimony of official witnesses with the arrest of the appellant.

The evidence adduced during trial does not inspire confidence as

PW-10, Shambhu Kumar Bhagat, who is the informant of this

case and who had seized the contraband alongwith PW-11, Ravi

Ranjan contradicted the quantity of recovered Ganja, where PW-

11 categorically stated in his

cross-examination that except putting signature on seizure list he

did nothing, moreover PW-8, Devendra Shahni and PW-9,

Deepak Kumar, who are seizure list witnesses did not support

recovery of Ganja before them and stated that their signature

was obtained on plain paper. The evidence on behalf of the pro-

secution does not inspire confidence also because of the several

discrepancies highlighted hereinabove in our discussion.

44. All these factors lead us to believe that the pro-

secution had failed to prove its case beyond all reasonable Patna High Court CR. APP (DB) No.172 of 2018 dt.28-03-2023

doubts against the appellants/convicts.

45. Accordingly, the present appeal is allowed.

46.The impugned judgment of conviction dated

09.01.2018 and the consequent order for sentence dated

15.01.2018 passed by the learned Additional Sessions Judge,

8th , Muzaffarpur in connection with Bochhahan P.S. Case No.

22/15 are set aside. The appellants/convicts are acquitted of the

charges levelled against them. They are directed to be set at

liberty forthwith unless their detentions are required in any other

case.

(A. M. Badar, J)

( Chandra Shekhar Jha, J) Archana/-

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