Patna High Court
Santosh Kumar Singh @ Rasgulla vs The State Of Bihar on 18 January, 2024
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1844 of 2023
Arising Out of PS. Case No.-159 Year-2021 Thana- BUXAR INDUSTRIAL District- Buxar
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SANTOSH KUMAR SINGH @ RASGULLA S/O LATE RAM PRAVESH
SINGH R/O Village- Majharia, P.S- Buxar Industrial, District.- Buxar.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Alok Abhinav (Amicus Curiae)
Mr. Amar Kumar Singh, Advocate
For the Respondent/s : Mr.Bal Mukund Prasad Sinha, APP
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CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 18-01-2024
1. Heard learned counsel for the appellant and
learned APP appearing for the State.
2. This appeal has been filed against the
judgment of conviction and order of sentence dated
13.02.2023
passed by the learned Additional District and
Sessions Judge-III, Buxar, in connection with N.D.P.S. Case
No. 31 of 2021, CIS No. 32 of 2021, arising out of Buxar
Industrial P.S. Case No. 159 of 2021, whereby and
whereunder the appellant has been convicted for the offence
punishable under Section 20(b)(ii)(c) of Narcotic Drugs and
Psychotropic Substances Act (hereinafter referred to as
'N.D.P.S. Act') and sentenced to undergo rigorous
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
imprisonment for ten (10) years with a fine of Rs.
1,00,000/- (Rupees one lakh only) for the said offence and
in default of payment of fine, to further undergo rigorous
imprisonment for a period of one (1) year.
3. The Substance of the prosecution's case is that
the Station House officer (in short 'S.H.O.'), Mukesh
Kumar, of Buxar Industrial Area P.S. got the secret
information on 22.08.2021 at about 06.05 A.M. that one
person namely, Santosh Kumar Singh @ Rasgulla Singh
(appellant) indulged in selling of narcotic material namely,
'Ganja' in his newly constructed house situated at Kathkouli
village, thereafter the matter was reported by him to his
senior officer and he also requested to appoint a Magistrate
and in this regard a necessary entry was made in the station
diary and after that the Block Development Officer (in short
B.D.O.) posted at Buxar was deputed and thereafter, for the
verification of the said secret information, B.D.O., S.I.,
Haresh Kumar and constables namely, Kundan Kumar,
Upendra Kumar and Ravi Ranjan Kumar proceeded from
police station to Kathkouli village and reached near the
house of accused Santosh Kumar Singh @ Rasgulla Singh.
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
As per further allegation, when the police party
reached at the house of accused, one person, who was
present in the said house, on seeing the police party, tried to
flee away through the gate but on chase he was
apprehended by the police party and on interrogation, he
revealed his name as Santosh Kumar Singh @ Rasgulla
Singh (appellant) and thereafter a notice under Section 50
of N.D.P.S. Act was given to him for the purpose of
communicating the intention of police party to search his
house, on which he gave his consent and thereafter the
informant along with the deputed B.D.O. and two
independent persons namely, Jai Prakash Singh and Raju
Singh entered into the house of accused and during course
of search, from one room situated in north-west corner on
the first floor of the house, two steel boxes containing 5
sacks were recovered, out of the said boxes, the bigger box
contained 3 sacks and the small box contained 2 sacks, after
that the sacks were weighed with the help of weighing scale
(Tarajoo) which was also found in the room and after
weighing, the weight of the each sack was measured as
10.9 kg, 10.9 kg, 16.2 kg, 16.0 kg and 12.5 kg which was
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
66.5 kg in total and after that the seizure list was prepared
in the presence of B.D.O. and independent witnesses, upon
which they made their signatures and thereafter sample was
taken from each sack and after that the sample and rest
contrabands were sealed and marked as A, B, C, D and E
and the sample was marked as A1 and one copy of the
seizure memo was given to the accused Santosh Kumar
Singh @ Rasgulla Singh and he was made aware of the
offence which had been committed by him and then he was
officially arrested.
4. The informant recorded his self-statement,
Exhibit- P-12, describing the above-mentioned allegations,
on that basis the formal FIR bearing Buxer (Industrial Area)
P.S. Case No. 159 of 2021 was lodged for the offences
punishable under Sections 20(b)(ii)(c)/22/27/29 of the
N.D.P.S. Act, which set the criminal law in motion.
5. Here, it is relevant to mention that the appellant,
at the time of his arrest, disclosed to the police party that
seized contrabands were supplied to him by his co-villager
namely, Prithivi Singh @ Runu Singh, who used to do such
activity and also disclosed that the said co-villager had
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
purchased a Toyota Innova car from the proceeds of crime
and also used the same in the smuggling of the narcotic
materials. On the basis of said disclosure the co-accused
namely, Prithivi Singh @ Runu Singh was also made
accused and he was chargesheetd along with the appellant.
6. After completion of investigation, the police
chargesheeted the appellant and co-accused Prithivi Singh
@ Runu Singh for the alleged offences and cognizance of
the alleged offences was taken and thereafter they stood
charged for the offences punishable under Sections 20(b)(ii)
(c), 22, 27 and 29 of N.D.P.S. Act.
7. During trial, the prosecution examined 5
witnesses and in documentary evidence, proved and
exhibited the informant's self statement, an information
given to the appellant under Section 50 of N.D.P.S. Act,
seizure memo concerned to the recovery of alleged narcotic
contrabands, seizure memo of the recovery of Toyota
Innova car and mobile phones, confessional statement of
the appellant, arrest memos of the appellant and co-accused,
Formal FIR and F.S.L. report which were marked as
Exhibits P-12, P-9, P-1, P-11, P-13, P-4, P-3, P-14 and P-16
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
respectively.
8. After completion of prosecution's evidence, the
statements of the appellant and co-accused were recorded
under Section 313 of Cr.P.C., in which the appellant denied
all the material circumstances appearing against him from
the prosecution's evidences and claimed himself to be
innocent and took the defence that from his house, no
'Ganja' was recovered and he did not indulge in the illicit
business of smuggling of narcotic material.
9. The co-accused namely, Prithivi Singh @ Runu
Singh also denied the material circumstances appearing
against him from the prosecution's evidences and he took
the defence that he had been arrested on 21.08.2021, a day
prior to the raid and was brought at the police station but no
police official of Industrial Area P.S. was present there
rather police officials of Town Police Station and D.I.O.
were present and he was falsely implicated by them.
10. The trial court held the appellant guilty of the
offence punishable under Section 20(b)(ii)(c) of N.D.P.S.
Act but did not convict for other charged offences on
account of said offences having been not proved beyond
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
reasonable doubt and the co-accused was given the benefit
of doubt and only the appellant was convicted and
sentenced in the manner mentioned-above in paragraph
no.2.
11. It has been argued by Mr. Alok Abhinav,
learned Amicuse Curiae that though in the present matter,
one independent person namely, Jai Prakash Singh, who is
said to be a witness of the search and seizure, turned hostile
but other prosecution witnesses, who are police officials,
fully supported the recovery of the alleged contrabands
from the alleged house and the appellant was also
apprehended from the said house and the seized narcotic
materials which were found packed in 5 sacks were sealed
at the place of recovery after sampling and before the trial
court, their recovery as well as the factum of sampling was
proved by the prosecution. Further it has been submitted
that though the prosecution did not produce any evidence to
prove the secret information which is said to have been
received by the informant but the B.D.O. who accompanied
the police party to the place of recovery proved the other
relevant facts such as the appellant's attempt to flee on
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
seeing the police party, recovery of the alleged contrabands
in huge quantity etc. from the appellant's newly constructed
house. Furthermore, it has been submitted that before the
trial court, the prosecution failed to prove the fact as to
making the senior police officials aware regarding the
receipt of the secret information in respect of alleged
activity of the appellant as in this regard no documentary
evidence was given by the prosecution, however the oral
testimony of the police officials, who were examined before
the trial court, is sufficient to prove the said fact.
12. Heard learned Amicus Curiae and learned
APP for the State and also perused the judgment impugned
and evidences available on the case record of trial court and
gone through the statement of accused.
13. The instant matter relates to the recovery of
66.5 kg. narcotic material namely, 'Ganja' and as per
allegation, the said material was recovered from a newly
constructed house of the appellant. The appellant has
mainly taken the defence that he has no connection with the
alleged house which is said to be the place of recovery of
the alleged narcotic materials and he has been falsely roped
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
in this matter. Now, I have to see whether prosecution
succeeded in proving the appellant's connection either in
the form of as being owner or as a possessor of/over the
newly constructed alleged house situated at Kathkouli
village which is said to be the place of recovery of the
alleged contraband. The seizure memo of the seized
narcotic material is said to have been prepared before two
independent persons namely, Jai Prakash Singh and Raju
Singh. Jai Prakash Singh was examined as PW-5 before the
trial court. He deposed that he knew the appellant on
account of being a resident of Kathkouli, he identified his
signature over the seizure memo which was exhibited as P-
15. The witness deposed in his cross-examination that he
had no knowledge about the case and nothing was
recovered before him and he made his signature upon the
blank paper at police station. Accordingly, the said witness
did not support the prosecution's case and his evidence does
not help the prosecution in establishing any type of
connection of the appellant with the alleged newly
constructed house which is said to be the place of recovery
of alleged narcotic material.
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
14. The second independent witness namely, Raju
Singh (DW-1) of the proceeding of search and seizure,
whose name has been mentioned as a witness of the search
and seizure in the seizure memo, was not produced and
examined by the prosecution rather he was produced by the
appellant and examined as defence witness DW-1. He
deposed that the appellant is a resident of his village i.e.
Majharia and the appellant has no any house at Kathkouli
village (Buxar) and nothing was recovered from the
appellant's possession when he was arrested and he saw the
proceeding of the arresting of the appellant. The evidence of
this witness, who was produced and examined by the
defence, goes against the prosecution particularly with
regard to the material fact as to appellant's connection with
the alleged place of recovery rather supported the
appellant's defence. Regarding the said material fact, now, I
examine the evidence of other prosecution witnesses who
are stated to be present at the place of recovery from where
the contraband was recovered. PW-1 Haresh Kumar, who
prepared the seizure memos of the alleged contraband,
vehicle and mobile phone etc. Exhibit. P-1 and P-2
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
respectively and also prepared an arrest memo Exhibit-3 of
the appellant, deposed in the cross-examination that the
appellant was 10 metres away from the alleged house when
he was apprehended. From this statement, one thing is quite
clear that the appellant was not arrested inside the house i.e.
place of recovery. The witness deposed in the cross-
examination that he did not see any document concerned to
the alleged house of recovery and the persons residing
nearby stated that the said house always remained closed
and there was no any board or name plate affixed at the said
house. He further deposed in the cross-examination that
the house was found open and there was no lock.
15. PW-2, Block Development Officer, who is
said to be present with police party at the raiding place,
deposed that he did not enter into the house that belonged to
the arrested accused. He further deposed in the cross-
examination that he did not remember the place of
appellant's arrest and also does not remember whether any
interrogation was made or not by the police officials from
the persons residing nearby the place of recovery. He
further deposed that he did not see any document concerned
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
to the title of the alleged house and could not state the
boundaries of the said house.
16. PW-3, Mukesh Kumar, who is said to be the
informant of the present matter and was present at the place
of recovery at the time of raid, deposed that he did not see
any document concerned to the place of recovery before or
after the institution of the case and he did not see anyone
residing in the alleged house and even did not mention in
the FIR the details of the person who told him about the
ownership and possession over the alleged house.
17. PW-4 is said to be the investigating officer
and he deposed in the examination-in-chief that he
inspected the alleged house situated at Kathkouli village
and he described the boundaries of the said house,
according to which, in Southern side there is only a house
of Jay Prakash Singh, son of Ras Bihari Singh, in North
side there is an agricultural land, in the Eastern and Western
side there are open fields. According to this statement there
is only one neighbour namely, Jay Prakash Singh, whose
house is said to be situated near the southern boundary of
the alleged house but the said person who was examined as
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
PW-5 did not say anything in his evidence to show the
location of the alleged house at Kathkouli village at the
place as described by PW-4 and moreover prosecution itself
also remained careless in eliciting any relevant fact
regarding the appellant's connection with the alleged house
while conducting chief-examination by putting non-leading
relevant question . He deposed in the cross-examination that
there was no lock at the door of the alleged house and the
door was simply closed with latch (chitkani) and he did not
find anyone residing in the said house and did not see any
document concerned to the ownership of the alleged house
during investigation.
18. From the above discussed facts coming out
from the statements of the prosecution witnesses, one thing
is quite clear that during investigation, the investigating
officer did not make any serious attempt to find out the
appellant's connection with the alleged house from which
the recovery of the alleged contrabands is stated to have
been made and one person namely, Jay Prakash Singh (PW-
5), who is said to be residing near the boundary of the
alleged house, did not support the prosecution's allegation
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
as to appellant's possession and ownership over the alleged
house and one material prosecution witness as discussed
above stated that appellant was arrested 10 meters away
from the alleged house and from the statements of above
witnesses it is evident that it was not alleged that the alleged
contrabands were recovered from the conscious and
specific possession of the appellant. Accordingly, I find
substance in the defence taken by the appellant as to no
connection of him with the alleged house from whom the
recovery of the alleged contrabands is said to have been
made and the prosecution failed to establish the appellant's
connection with the said house and also failed to establish
the recovery of the alleged contrabands from the conscious
and specific possession of the appellant.
19. So far as the compliance of mandatory
provisions of the N.D.P.S. Act is concerned, on this aspect
the prosecution's case also appears to be faulty.
20. PW-1, Haresh Kumar, deposed that the secret
information regarding appellant's involvement in
purchasing and selling of narcotic material namely, 'Ganja'
was informed to his senior officer and he also requested his
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
senior officer to depute a Magistrate. Regarding the said
information, the witness made vague statement in his cross-
examination and he stated that he could not state the time,
mode of information and about the senior officer who was
informed. Here, it is important to mention that a B.D.O. was
examined as PW-2 but he also could not produce any
document regarding his deputation with the police party
while he deposed in the cross-examination that the Sub-
Divisional Officer (S.D.O.) directed him in writing. From
these facts, it is evident that the secret information on that
basis the police party proceeded towards the alleged house
was not reduced into writing nor any material was produced
to show the communication of the said information by the
informant to his superior officer within the prescribed time.
Hence, the provision of Section 42(2) of N.D.P.S. Act was
not complied with by the informant which goes against the
prosecution and makes its case weak.
21. Though in the present matter, the seized 5
sacks were produced before the trial court as appears from
the evidence of P.W.- 4, who investigated the present
matter but his evidence does not seem reliable to prove that
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
the sacks containing the alleged contrabands that were
produced before the trial court were the same sacks which
were actually seized from the alleged house and in this
regard statements made by this witness in paragraph no. 17,
18, 22 and 24 are relevant. He deposed in the said
paragraphs that there was no signature of the appellant as
well as of the witnesses of the seizure on any of the seized
sacks and there was also no signature of the informant upon
any of the sacks, and the papers which were affixed over the
5 sacks did not contain the details of the place and time of
sealing process. During evidence, the witness did not say
anything about the particulars and type of the seal which is
stated to have been affixed on the seized sacks and in this
regard the witness deposed in the cross-examination that he
got a particular seal and specimen of that seal was put by
him on the FIR but he could not state about the details of
the said seal. In the light of said statement, I have perused
the formal FIR as well as self-statement of informant on
that basis the FIR was registered but there is no details of
the specimen of the said seal in the FIR as well as self-
statement of the informant and furthermore, before the trial
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
court, the prosecution did not produce and prove the papers
containing relevant details which are said to have been
affixed on the sacks by the informant just after the recovery
of the said sacks when the sealing process was being done
and the said circumstance also goes against the prosecution.
It is very important to mention that an inventory of the
seized narcotic materials and other articles was not
prepared by I.O. nor any attempt was made by him to first
prepare the inventory and thereafter get such inventory
certified regarding its correctness by any Magistrate. As in
present matter no inventory was prepared, so there is no
question of the process of photography in the presence of
Magistrate regarding the procedure of certifying the
inventory and photograplhs and the said circumstance also
goes against the prosecution. In the present matter, the
B.D.O. (PW-2) is said to be present at the time of search,
seizure and other proceedings relating to seized contbands
but he did not say anything in his evidence before the trial
court to show that the samples from the seized sacks, in
which there were contrabands, were taken before him.
Furthermore, the prosecution failed to produce any material
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
to show that after the seizure of the alleged contrabands the
investigating officer made an attempt for deputation of a
Magistrate for the purpose of drawing representative
samples from the seized narcotic materials in presence of
such Magistrate and in this regard, the provisions of Section
52A of N.D.P.S. Act were not followed by the police party
which also goes against the prosecution. P.W.3, Mukesh
Kumar, deposed in examination-in-chief that samples were
taken from each sack, but P.W.4, Vijay Shankar Choudhari,
who is the investigating officer, deposed that in the light of
court's direction a sample of 250 gms. was only taken from
one place of the 5 sacks. These statements show a serious
contradiction regarding the factum of taking sample from
each sack by the concerned police officer and the said
circumstance also goes against the prosecution. In the
present matter, as per the prosecution's evidence the seized
materials were deposited in the police Malkhana but in this
regard neither the Malkhana In-charge was examined nor
any documentary evidence such as an entry in the
Malkhana register about depositing the said articles was
produced and proved by the prosecution before the trial
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
court which also goes against the prosecution.
22. From the circumstances appearing from the
prosecution's evidences as discussed above, I am not
persuaded to affirm the judgment and order impugned
convicting the appellant and sentencing him for the offence
charged and the above discussed circumstances completely
go against the prosecution and cast a serious doubt in the
prosecution's allegation and make the appellant entitle to
get the benefit of doubt. As such, the judgment and order
impugned are hereby set aside and the instant appeal stands
allowed.
23. The appellant is in custody, hence he is
directed to be released forthwith from the jail, if his custody
is not required in any other matter.
24. Mr. Alok Abhinav, learned Amicus Curiae
shall be entitled to remuneration, as per notification dated
18.05.2017 issued by the State Government, to be paid by
the Patna High Court Legal Services Committee for
assisting this court.
25. Let the judgment's copy be sent to the
concerned trial court and Jail Superintendent for needful
Patna High Court CR. APP (SJ) No.1844 of 2023 dt.18-01-2024
and immediate compliance of this judgment.
26. Let the L.C.R. be sent back to the trial court
forthwith.
(Shailendra Singh, J)
Rajiv/.-
AFR/NAFR AFR
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