Santu Kumar vs The State Of Bihar
2023 Latest Caselaw 2022 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.850 of 2015
      Arising Out of PS. Case No.-217 Year-2013 Thana- BIHAR District- Nalanda
======================================================

Santosh Kumar Son of Shankar Singh Resident of Village - Dhanawadih, Police Station - Sarmera, District - Nalanda.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 720 of 2015 Arising Out of PS. Case No.-217 Year-2013 Thana- BIHAR District- Nalanda ====================================================== Pawan Kumar S/o Yogi Prasad Yadav, R/o Kachidargah, P.S. - Fatuha, District

- Patna.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 916 of 2015 Arising Out of PS. Case No.-217 Year-2013 Thana- BIHAR District- Nalanda ====================================================== Manoj Kumar son of Lagan Ray resident of village - Abu Mohammadpur, P.S. Bakhtiyarpur and Distt. Patna.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 1018 of 2015 Arising Out of PS. Case No.-217 Year-2013 Thana- BIHAR District- Nalanda ====================================================== Santu Kumar S/o Late Devendra Prasad Gupta, R/o Village- Jethuli, P.S.- Fatuha, District- Patna.

... ... Appellant/s Versus The State Of Bihar Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

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

(In CRIMINAL APPEAL (DB) No. 850 of 2015) For the Appellant/s : Mr. Dhirendra Kumar Sinha, Adv. For the Respondent/s : Mr.A.K. Sinha App (In CRIMINAL APPEAL (DB) No. 720 of 2015) For the Appellant/s : Mr. Dhirendra Kumar Sinha, Adv. For the Respondent/s : Mr.D.K.Sinha App (In CRIMINAL APPEAL (DB) No. 916 of 2015) For the Appellant/s : Mr. Dhirendra Kumar Sinha, Adv. For the Respondent/s : Mr.S.B.Verma App (In CRIMINAL APPEAL (DB) No. 1018 of 2015) For the Appellant/s : Mr.Dhirendra Kumar Sinha For the Respondent/s : Mr.S.N. Prasad App ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 01-05-2023

1. We have heard the Criminal Appeal (DB) No.

850 of 2015 (Santosh Kumar); Criminal Appeal (DB)

No. 916 of 2015 (Manoj Kumar) and Criminal

Appeal (DB) No. 1018 of 2015 (Santu Kumar vs.

the State of Bihar) together, all of which are being

disposed of by this common judgment.

2. We have been informed that one more appeal,

namely, Criminal Appeal (DB) No. 720 of 2015

(Pawan Kumar) is pending consideration before this

Court. The file of the aforesaid criminal appeal has

been notified and summoned and the same is also Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

being disposed of by this common judgment.

3. We have heard Mr. Dhirendra Kumar Sinha,

the learned Appellant in all the appeals and Ms.

Shashi Bala Verma, the learned APP for the State.

4. All the appellants stand charged and convicted

under Section 20 (B) (II) (C) of the NDPS Act, 1985

and they have been sentenced to undergo R.I. for

12 years, to pay a fine of Rs. One Lakh each and in

default of payment of fine, to further suffer rigorous

imprisonment for one year separately.

5. The F.I.R., namely, Bihar P.S. Case No. 217 of

2013 dated 16.07.2013 for offences under Section

20, 21 and 22 of the NDPS Act and Section 414 of

the Indian Penal Code was lodged by PW1, who has

alleged that at about 3 O' Clock in the morning of

16.07.2013, he was informed by the Special Task

Force that two vehicles; one being a Marshal Jeep

and the other, a Honda City Car are likely to come

from Biharsharif direction and in those vehicles,

Ganja has been loaded.

Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

6. The afore-noted information was reduced in

writing and an entry was made in the station diary. A

raiding team was constituted by PW1, which included

other police officers, who have been cited and

examined as PWs 2, 3 and 4. A request was also

made to the Sub Divisional Officer, Biharsharif for

deputing one Magistrate, consequent upon which,

one Bhola Prasad Singh, the Magistrate (PW8) was

deputed. The raiding team took its position on the

road. Two vehicles of the make of Marshal and

Honda City were spotted at around 4.20 A.M. on

16.07.2013 only. When signalled to stop, two

persons came out of the Honda City Car and started

fleeing away. The afore-noted persons were nabbed

by the police party, who disclosed their names as

Pawan Kumar and Santu Kumar, the appellants in

Criminal Appeal (DB) No. 720 of 2015 and Criminal

Appeal (DB) No. 1018 of 2015 respectively.

7. A search was made in both the vehicles. From

Marshal Jeep, 100 bundles of Ganja was recovered Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

whereas from Honda City Car, 57 packets of Ganja

were recovered. Each of the packets weighed one

kilogram.

8. Two of the other appellants, namely, Manoj

Kumar and Pawan Kumar, the appellants in Criminal

Appeal (DB) No. 916 of 2015 and Criminal Appeal

(DB) No. 850/2015 were found sitting in the

Marshal Vehicle, who too were arrested. The

aforenoted persons disclosed before the police party

that the narcotics belonged to one Dilip Sao of

Fatuha. The consignment had come from Orissa.

PW1 has further stated that the narcotics were

sealed in presence of two of the on-lookers and

brought to police station whereafter formal F.I.R.

and seizure list was prepared. Two of the witnesses

of the seizure list have been examined as Pws 5 and

6, namely, Pankaj Kumar and Surendra Prasad

respectively, both of whom have not supported the

prosecution version.

9. During the trial, PW1 supported the allegations Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

made in the F.I.R. However, during cross-

examination, he did not state anything to establish

that the arrested persons were given the option of

being searched in presence of a Magistrate.

10. There is nothing in the statement of PW1

which would even remotely indicate as to the manner

in which the seized articles/ narcotics were sealed or

any sample drawn from the same. On the contrary,

it has been asserted that it was brought to the police

station in the same condition in which it was seized

and thereafter it was kept in two bags which were

tied up. There is no statement with regard to the

same having been sealed or sample having been

drawn from the said seized articles. In this context,

we have also examined the deposition of Rajesh

Kumar (PW7), who is the Investigating Officer of

this case. He supports the prosecution case though

that on 16.07.2013, 157 packets of Ganja was

seized and each of the packet contained one kg. of

Ganja. He had been handed over the investigation by Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

the Officer-in-Charge (PW1) on 16.07.2013 only.

After taking up the investigation, PW7 visited the

place of occurrence and also took the statement of

seizure list witnesses. Thereafter, further statement

of the informant and the statement of the members

of the raiding team was recorded. The seized

articles, it has been asserted by PW7, was sent to

Forensic Science Laboratory Patna and Kolkata which

was returned on 02.09.2013; which was again sent

on 20.09.2013 before Forensic Science Laboratory,

Patna and on 27.09.2013 to Kolkata. In his cross-

examination, PW7 had admitted that the narcotics

was not seized in his presence and he took control of

the same only after taking over the investigation on

16.07.2013. At the time of his taking over the

investigation, the narcotics so seized was kept in the

police premises only. No date has been provided by

the PW7 of the deposit of the narcotics in the

Malkhana. All that has been said by him is that on

02.09.2013, the seized narcotics was procured from Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

the Malkhana for the purposes of being presented

before the District & Sessions Judge. He has further

stated that the sample which was sent to Forensic

Science Laboratory and which was returned on

02.09.2013 was for the reason that the forwarding

note was vague and even the estimated weight of

the sample was not indicated in the forwarding note.

An application was filed by PW7 before the District &

Sessions Judge for rectification of those anomalies

for which the samples were sent back from the

Forensic Science Laboratories, Patna and Kolkata

respectively which was again sent after re-seal.

11 Thus from the deposition of PW1 and PW7, it

becomes very clear that even though Bhola Prasad

Singh, the Magistrate, was present at the time of

raid, no effort was made to draw the sample in his

presence. When were the samples drawn is also not

known. This is a clear violation of the provisions

contained in Section 52A of the N.D.P.S. Act, 1985.

Whenever any narcotic drug or psychotropic Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

substance or controlled substance or conveyance is

seized and forwarded to the Officer-in-Charge of the

nearest police station or to the Officer empowered

under Section 53 of the Act, an inventory is required

to be prepared containing such details relating to its

description, quality, quantity, mode of packing,

marks, the numbers or such other identifying

particulars of the seized drugs or the packing in

which they are packed, their country of origin and

other particulars which would testify to the identify

of the narcotics seized. Thereafter an application is

required to be made before the Magistrate for

certifying the inventory so prepared; for taking in

presence of such Magistrate, photographs of such

drugs or substances or conveyance and certifying

such photographs as true; allowing to draw

representing samples of such drugs or substances in

the presence of such Magistrate and certifying the

correctness of any list of sample so drawn. The

Magistrate is supposed to allow such a request of the Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

Officer immediately. These photographs and

certificates form part of the primary evidence in a

case dealing with narcotic drugs.

12. From the deposition of PW1 and PW7, as

noted above, it does not appear that any such

requirement was followed, making the prosecution

case highly doubtful and redolent with suspicion.

13. In this context, it would be necessary to refer

to the deposition of PW4, namely, Alok Kumar, who

was also one of the members of the raiding team.

He has stated in his examination in chief that no

person was called for being a witness to the seizure

as during the course of raid, approximately 20

persons had assembled at the place of occurrence.

The weighment of the seized narcotic was done at

the place of raid only by means of mechanical

weighing instrument. Did the raiding team carry the

weighing instrument or was it procured from the

nearby shop was not known. He has further testified

that nothing was done to the seized narcotics when Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

the same was brought to the police station. In his

presence, there was no attempt to seal the same or

to draw any sample from the stock. In his presence,

the narcotic which was seized was only kept in the

Malkhana of the police station. It was not sent to the

Malkhana of the district where the inventory is

made.

14. Surprisingly, the two of the seizure list

witnesses, namely, PWs 5 and 6 have completely

denied that any such seizure was made in their

presence.

15. This takes us to the deposition of PW8, the

Magistrate, who was deputed along with the raiding

team. Though he supports the allegation that in his

presence, four persons were arrested from two

vehicles and 157 bundles of Ganja in all was

recovered from two vehicles but has stated that he

had no idea as to where from the weighing scale was

brought. Only few bundles, according to him, were

weighed and on the basis of such sample weighing, Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

inventory was made. Not all bundles were even

opened for confirmation whether it contained

narcotics. Whichever bundle was opened for such

confirmation was tied at the place of raid. He has

further testified that he remained for approximately

45 minutes during the time of the raid whereafter he

went to his residence. Both the vehicles were

mentioned in one seizure list only.

16. From his deposition, therefore, it further gets

confirmed that the inventory was not made in his

presence nor was any sample drawn in his presence

as mandated under Section 52A of the N.D.P.S. Act,

1985.

17. Anup Kumar (PW-9) is the person, who had

brought the narcotics before the Trial Court on being

demanded. In his cross-examination, he had very

candidly accepted that the seized articles contained

only 4 to 5 kgs of Ganja as rest of it had been eaten

away by rodents. The bag in which the Ganja was

kept was also found torn from many places. There Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

was no seal of certification on such material exhibits

before the Trial Court.

18. Thus, it becomes rather clear that the

mandatory requirements under the N.D.P.S. Act

have not been followed.

19. The Court is left with no information as to

whether the seized articles from the constructive

possession of the appellants was actually

contraband. The certificate from the Forensic Science

Laboratory that the samples sent to them

corresponded to Ganja would not bolster up the case

of the prosecution for the reason that nothing is

known about the manner in which the samples were

drawn or whether those were drawn from the seized

narcotics. Thus, the entire material exhibits of the

seized articles loses its significance for any

adjudication of the guilt of the appellants.

20. For the afore-noted reasons, we are not

persuaded to bellieve the proseuction verision. The

Trial Court appears to have only taken note of the Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

fact that the report of the Forensic Science

Laboratory talked about the sample corresponding to

narcotics and that the samples had marking with red

lac. This was no sufficient material for the Trial Court

to have come to a definite conclusion that the

samples were drawn from the same seized bundles

of narcotics from the constructive possession of the

appellants.

21. We have also found that the requirement

under Section 50 of the N.D.P.S. Act has also been

violated with impunity though from the personal

search of the appellants, no narcotics was recovered.

Even then, the Miranda principles are not to be

ignored. The safeguards, which have been provided

in the N.D.P.S. Act, 1985 appeared to have been

completely left unguarded giving us no clue whether

the samples which tested positive for the narcotics

drugs were from the seized narcotics from the

appellants.

22. We, therefore, are unable to sustain the Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

judgment of conviction and order of sentence of the

appellants and we set aside the same.

23. Out of the four appellants, only

appellant/Manoj Kumar in Criminal Appeal (DB) No.

916 of 2015 is in custody. Rest of the appellants,

namely, Santosh Kumar, Pawan Kumar and Santu

Kumar in Criminal Appeal (DB) No. 850 of 2015,

Criminal Appeal (DB) No. 720 of 2015 and Criminal

Appeal (DB) No. 1018 of 2015 respectively have

been released on bail only recently but only after

staying in jail for more than eight years.

24. The appellant / Manoj Kumar Criminal

Appeal (DB) No. 916 of 2015 is directed to be

released from jail forthwith. Since the appellants,

namely, Santosh Kumar, Pawan Kumar and Santu

Kumar are on bail, they are discharged from the

liabilities of the bail bonds.

25. All the four appeals stand allowed.

26. The release warrant of the appellant / Manoj

Kumar in Criminal Appeal (DB) No. 916 of 2015 be Patna High Court CR. APP (DB) No.850 of 2015 dt.01-05-2023

sent to the concerned Jail Superintendent

immediately.

27. The records of this case be returned to the

Trial Court forthwith.

(Ashutosh Kumar, J)

( Harish Kumar, J) sunilkumar/-

rohit
AFR/NAFR              AFR
CAV DATE              N/A
Uploading Date        05.05.2023
Transmission Date     05.05.2023.