Nand Lal Sah vs The State Of Bihar
2023 Latest Caselaw 2472 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.287 of 2018

 Arising Out of PS. Case No.-149 Year-2013 Thana- MOUZAHIDPUR District- Bhagalpur
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Nand Lal Sah, Son of Late Gurucharan Sah, Resident of Aliganj, Gangti, P.S.

- Mojahidpur (Babarganj), District - Bhagalpur.

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

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

For the Appellant/s : Mr. Vikramdeo Singh, Adv.

Mr. Rajive Ranjan Singh, Adv.

For the State : Mr. Dilip Kumar Sinha, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR) Date : 18-05-2023

We have heard Mr. Vikramdeo Singh and

Mr. Rajive Ranjan Singh for the appellant and Mr. Dilip

Kumar Sinha for the State.

2. The present appeal is directed against

the judgment and order of conviction and sentence dated Patna High Court CR. APP (DB) No.287 of 2018 dt.18-05-2023

20.12.2017 and 03.01.2018, respectively, passed by

the 4th Addl. District and Sessions Judge-Cum-Special

Judge, Excise and SC/ST Act, Bhagalpur in N.D.P.S.

Case No. 3431B of 2013 arising out of Mojahidpur

(Babarganj) P.S. Case No. 149/13, whereby the

appellant ha been convicted for the offences under

Sections 20(b)(ii)(C), 23(c) and 25 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (in short

the Act) and has been sentenced to undergo rigorous

imprisonment for 20 years, to pay a fine of Rs.

1,00,000/- and in default of payment of fine, to suffer

simple imprisonment for 20 months for the offence

under Section 20(b)(ii)(C) of the Act and rigorous

imprisonment for 20 years, to pay a fine of Rs.

1,00,000/- and in default of payment of fine, to further

suffer simple imprisonment for 20 months for the

offence under Section 23(c) of the Act. No separate

sentence has been awarded under Section 25 of the Act

as sufficient punishment has already been awarded to Patna High Court CR. APP (DB) No.287 of 2018 dt.18-05-2023

the appellant under Sections 20(b)(ii)(c) and 23(c) of

the N.D.P.S. Act, 1985.

3. All the sentences have been ordered to

be run concurrently.

4. In the house of the appellant and his

brother/Lakhan Lal Sah, there was a recovery of total

511 kgs. of Ganja for which he along with others had

been put on trial.

5. The trials appeared to have been

separated and in the present trial, the appellant has

been convicted and sentenced as aforesaid.

6. The case was initiated at the instance of

one Parshuram Singh (P.W. 8), who at the relevant time

was the S.H.O., Babarganj O.P., in the District of

Bhagalpur. He had received a secret information on

02.10.2013 at about 7:15 P.M. for which a self-

statement was recorded on 03.10.2013 at 8:25 A.M.

that the appellant is using his premises for storing Ganja

and that there is every likelihood of a fresh consignment Patna High Court CR. APP (DB) No.287 of 2018 dt.18-05-2023

of Ganja to be brought to his house. On such secret

information, after intimation to the superior police

officer, a team was constituted for raiding the premises

of the appellant and his brother. The appellant was not

found present in the house when the raid was

conducted. In one of the rooms of the house of the

appellant, Ganja was recovered. Before the raid, the

members of the raiding team got themselves searched in

presence of independent witnesses, namely, Ramjiwan

Sah (P.W. 9) and one Sumit Kumar. The raid was

conducted in presence of the Deputy Superintendent of

Police, Bhagalpur (P.W. 1). Along with the narcotics, a

digital weighing machine also was found. Indian and

Nepali currency notes were also recovered from one of

the almirahs in the room. A contiguous godown

belonging to one Mahesh Sah was also raided. Three

vehicles were also found to be parked in the afore-noted

godown. From the trunk of those vehicles, huge

quantity of Ganja was recovered. Many tin trunks were Patna High Court CR. APP (DB) No.287 of 2018 dt.18-05-2023

also recovered from the godown, which also contained

Ganja like substance.

7. In the room of the house of the appellant

from where the first recovery was made, two other

persons were found present, namely, Manoranjan Kumar

and Umashankar Yadav, who too were made accused in

this case and faced trial and were convicted, but have

been acquitted by this Court vide order dated

17.05.2023 passed in Cr. Appeal (DB) Nos. 223 of

2017 and 193 of 2017 respectively.

8. On the basis of the afore-noted

recoveries, the F.I.R. was registered against the

appellant and others for the offences under Sections

20(b) (c), 23(c) and 25 of the N.D.P.S. Act, 1985, as

noted-above.

9. The learned Trial Court, after examining

eight witnesses on behalf of the prosecution and one on

behalf of the defence, convicted and sentenced the

appellant as aforesaid.

Patna High Court CR. APP (DB) No.287 of 2018 dt.18-05-2023

10. The main contention of the appellant

against the judgment and order of conviction and

sentence is that though in the F.I.R. and in his

deposition before the Court, P.W. 8 had stated that he

had drawn the samples from the seized narcotics at the

place of occurrence, but the Investigating Officer of this

case, namely, Nilesh Kumar, who has been examined as

P.W. 10, has deposed before the trial that he had taken-

over the investigation and the seized articles on

31.10.2013, but had got the samples sealed and sent to

F.S.L. by taking permission of the Court on 02.12.2013.

During his cross-examination, he has also stated that the

narcotics were kept in the malkhana and he had visited

the malkhana only after a month.

11. From such deposition of P.W. 10,

referred to above, it becomes very obvious that

notwithstanding the raid having been conducted in

presence of the superior police officers, no sample was

drawn and that the statement made by the informant Patna High Court CR. APP (DB) No.287 of 2018 dt.18-05-2023

(P.W. 8) is incorrect.

12. Thus, it can safely be presumed that

the samples were drawn in the malkhana after a month

of the seizure. Thereafter, the samples were sent to the

Forensic Science Laboratory, Patna on 20.12.2023, i.e.,

after eighteen days. No reason also has been assigned

for such delayed sampling or dispatch of the samples to

the Laboratory for confirmation whether the seized

articles were narcotics or something else.

13. We have examined the report of the

Forensic Science Laboratory, Patna (Exhibit-6), which

further reflects that the samples were dispatched

through Constable/474-Roushan Kumar in the laboratory

on 02.12.2013 only.

14. Thus, there was an unusual delay in

drawing the samples, sealing the same and dispatching it

to the F.S.L.

15. This delay, it has been argued and

rightly so, is fatal and renders the prosecution case Patna High Court CR. APP (DB) No.287 of 2018 dt.18-05-2023

highly untrustworthy.

16. In the afore-noted context, it is

necessary to refer to the Standing Instruction No. 1 of

88 [the relevant Rules now is the Narcotic Drugs and

Psychotropic Substances (Seizure, Storage, Sampling

and Dispoal) Rules, 2022], which provides that the

samples from the narcotics substances so seized must be

drawn on the spot of recovery and in front of witnesses,

which fact must be mentioned in the seizure-list. The

samples are to be numbered and sealed. The samples,

in duplicate, are to be kept in heat-sealed plastic bags

and the samples ought to be sent expeditiously to the

laboratory for testing. Samples must be dispatched to

the laboratory within seventy two hours of the seizure.

17. There is nothing on record to indicate

any compliance of Section 52-A of the N.D.P.S. Act,

1985 also.

18. The second sample was sent to Kolkata

on 22.12.2013.

Patna High Court CR. APP (DB) No.287 of 2018 dt.18-05-2023

19. P.W. 10 has very categorically stated

that before 02.12.2013, no sample had been prepared

and till then, the narcotics were kept in the malkhana.

20. One would wonder as to when was the

sample drawn and before whom before having been

taken by P.W. 10 to the Court for sealing and obtaining

permission for its dispatch to the two laboratories. Even

after such permission, there was an unreasonable delay

in dispatching the same to the laboratories.

21. Veena Kumari (P.W. 1) has testified to

the fact that she was part of the raiding team and that

in her presence, the seizure-list was prepared, but she

has not stated anything about drawing of samples at the

place of recovery.

22. Ranjan Kumar (P.W. 2), another

member of the raiding team, further confirms that at the

time of raid, B.D.O. or C.O. or Magistrate was not

present. He has also not stated anything about sealing

of the seized articles or drawing of samples at the place Patna High Court CR. APP (DB) No.287 of 2018 dt.18-05-2023

of raid.

23. One Harikishore Rai (P.W. 3) on the

relevant date was posted as A.S.P., Law & Order, who

has, but in his examination-in-chief, has stated that

sample was drawn, but how was it drawn and whether

those were sealed and numbered has not been stated by

him.

24. It has been urged on behalf of the

appellant that the statement of P.W. 3 cannot be

believed for the reason that in his cross-examination, he

has stated that he did not remember as to who had

signed on the seal or that any sealing material was

available with the raiding team for the purposes of

sealing the narcotics as also the samples. Thus, it has

been argued, the prosecution has not be able to prove

that the provisions and the inhibiting in the N.D.P.S. Act,

1985 have been complied with.

25. This renders the prosecution case

doubtful for the reason that we get no idea as to from Patna High Court CR. APP (DB) No.287 of 2018 dt.18-05-2023

which stock of narcotics and before whom the samples

were drawn.

26. The provisions of the Act as also the

Rule and the Standing Instruction of the Ministry of

Finance, Department of Revenue are for the purposes of

ensuring that there is no false implication of any body as

the offences are severely punishable under Act.

27. With the recovery not been found to be

admissible, the case against the appellant collapses.

28. We have found that the learned Trial

Court has taken a short-cut approach of only discussing

the deposition of all the thirteen witnesses, but has not

done any adjudication of the matter by analyzing their

evidence.

29. Thus, we find that the conviction and

sentence of the appellant is not fit to be sustained in the

eyes of law.

30. The impugned judgment of conviction

dated 20.12.2017 and the consequent order of sentence Patna High Court CR. APP (DB) No.287 of 2018 dt.18-05-2023

dated 03.01.2018 passed by the learned 4 th Addl.

District and Sessions Judge-Cum-Special Judge, Excise

and SC/ST Act, Bhagalpur in N.D.P.S. Case No. 3431B

of 2013 arising out of Mojahidpur (Babarganj) P.S. Case

No. 149/13 are, accordingly, set-aside.

31. The appeal is allowed.

32. The appellant, viz., Nand Lal Sah is

acquitted of the charges levelled against him. He is

directed to be set at liberty forthwith unless his

detention is required in any other case.

33. Interlocutory application/s, if any, also

stands disposed off accordingly.

(Ashutosh Kumar, J)

(Harish Kumar, J) Praveen-II/-

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          22.05.2023
Transmission Date       22.05.2023