Patna High Court
Pappu Kumar vs The State Of Bihar on 24 January, 2024
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.361 of 2019
Arising Out of PS. Case No.-34 Year-2016 Thana- TARABARI District- Araria
======================================================
1. PAPPU KUMAR Son of Gulab Chand Mandal @ Gulabi Singh Resident of
Khari Tola, P.S.- Tarabari, District - Araria.
2. Gulabi Singh @ Gulab Chand Mandal Son of Jhabi Mandal Resident of
Khari Tola, P.S.- Tarabari, District - Araria.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 423 of 2019
Arising Out of PS. Case No.-34 Year-2016 Thana- TARABARI District- Araria
======================================================
PRAVEEN KUMAR MANDAL Son of Kamal Mandal, Resident of Village
and P.O-Kuari, Ward No.11, P.S-Kuari Kursakanta, District-Araria.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 456 of 2019
Arising Out of PS. Case No.-34 Year-2016 Thana- TARABARI District- Araria
======================================================
CHAMRU SINGH Son of Late Bajrangi Singh Resident of Village- Khari
Tola, Tarabari, P.S.- Tarabari, Dist- Araria.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 511 of 2019
Arising Out of PS. Case No.-34 Year-2016 Thana- TARABARI District- Araria
======================================================
SURESH CHOUDHARY Son of late Ramchandra Choudhary Resident of
Mohalla - Rambag, P.S.- Purnea Sadar, Distt - Purnea.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 361 of 2019)
For the Appellants : Mr. Ajay Kumar Thakur, Advocate
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
2/18
Mrs. Vaishnavi Singh, Advocate
Mrs. Kiran Kumari, Advocate
For the Respondent : Ms. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 423 of 2019)
For the Appellant : Mr. Mrigendra Kumar, Advocate
Ms. Kusum Kumari, Advocate
For the Respondent : Ms. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 456 of 2019)
For the Appellant : Mr. Ramesh Kumar Singh, Advocate
For the Respondent : Ms. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 511 of 2019)
For the Appellant : Dr. Bidhu Ranjan, Advocate
For the Respondent : Ms. Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE JUSTICE SMT. G. ANUPAMA
CHAKRAVARTHY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH)
Date : 24-01-2024
These appeals have been preferred by the appellants
under Section 374(2) of the Code of Criminal Procedure, putting
to challenge the impugned judgment of conviction dated
27.02.2019
and the order of sentence dated 07.03.2019, passed by
learned 1st Additional Sessions Judge-cum-Special NDPS Judge,
Araria, arising out of Tarabari P.S. Case No. 34 of 2016, Special
NDPS Case No. 17 of 2016, CIS No. 78 of 2016, whereby the
appellants have been convicted and sentenced as under:
Sentence
Appellant Penal Provision In default of
Imprisonment Fine (Rs.)
fine
Under Section 20(b)(ii) R.I. for 20 years 2,00,000/- S.I for one year
Pappu (C) of NDPS Act
Kumar Under Section 23(c) of R.I. for 20 years 2,00,000/- S.I for one year
NDPS Act
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
Gulabi Singh Under Section 20(b)(ii) R.I. for 20 years 2,00,000/- S.I for one year
@ Gulab (C) of NDPS Act
Chand Under Section 23(c) of R.I. for 20 years 2,00,000/- S.I for one year
Mandal NDPS Act
Penal Provision Sentence
Appellant Imprisonment Fine (Rs.) In default of
fine
Under Section 20(b)(ii) R.I. for 10 years 1,00,000/- S.I for six months
Praveen (C) of NDPS Act
Kumar
Mandal Under Section 23(c) of R.I. for 20 years 2,00,000/- S.I for six months
NDPS Act
Penal Provision Sentence
Appellant Imprisonment Fine (Rs.) In default of
fine
Under Section 20(b)(ii) R.I. for 10 years 1,00,000/- S.I for six months
Chamru (C) of NDPS Act
Singh Under Section 23(c) of R.I. for 20 years 2,00,000/- S.I for six months
NDPS Act
Penal Provision Sentence
Appellant Imprisonment Fine (Rs.) In default of
fine
Under Section 20(b)(ii) R.I. for 10 years 1,00,000/- S.I for six months
Suresh (C) of NDPS Act
Choudhary Under Section 23(c) of R.I. for 20 years 2,00,000/- S.I for six months
NDPS Act
2. A self statement of Sunil Kumar (PW1), the Station
House Officer Tarabari Police Station, recorded on 09.05.2016 at
6:30 am at the site where 30 kg Ganja was recovered from a
Scorpio vehicle occupied by these appellants, according to the
prosecution's case, is the basis for registration of the concerned
Tarabari P.S. Case No. 34 of 2016, disclosing commission of the
offences punishable under Sections 20, 22, 23 and 24 of the
Narcotic Drugs and Psychotropic Substances Act (NDPS Act).
According to him, he had received a secret information to the
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
effect that Gulabi Singh @ Gulab Chand Mandal (Appellant No.
2) in Cr. Appeal (D.B.) No. 361 of 2019 was planning to sell huge
quantity of Ganja which he had brought from Nepal. An
information to this effect was transmitted to the Superintendent of
Police, Araria, whereupon, the Superintendent of Police, Araria,
constituted a raiding team comprising Dhananjay Kumar, SHO
Sikti Police Station (PW2), Rama Shankar, SHO Bardaha Police
Station (PW4), Vikash Kumar Azad, SHO Kurshakanta Police
Station (PW5), the informant (PW-1) and constables Dharmendra
Kumar (not examined), Ravindra Sharma (not examined) and
Vinay Kumar. The team so constituted left the Police Station at
3:30 am and reached at Dhabra Dhobi Tola at 4:45 am. At about
5:45 am, they noticed a Scorpio vehicle approaching from Khari
Tola, which was intercepted by the raiding team. All the occupants
of the vehicle attempted to flee away after seeing the police party.
All of them were, however, apprehended and they disclosed their
names, who are the appellants herein. The self statement further
mentions about several persons having gathered at the place of
interception. The appellants were searched in the presence of two
independent witnesses, namely, Pramod Rajak (DW2) and Dilip
Rajak (DW1). In course of search from the vehicle, two white bags
were recovered, one of which contained 14kg and other 16kg of
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
Ganja. In the presence of the aforesaid independent witnesses, the
vehicle and the contraband were seized and the seizure list was
prepared. The informant further asserted that the appellants
Chamru Sah disclosed to him that he had taken Ganja from the
house of the appellant Gulabi Singh @ Gulab Chand Mandal with
Pappu (an appellant) and he was about to deliver it to one Suresh
Chaudhary. He also admitted that he and others indulged in
smuggling of Ganja.
3. It is pertinent to mention, at this juncture itself, that
the First Information Report does not disclose the preparation of
the samples soon after the seizure was made. It also does not
mention as to whether the secret information, which the informant
had received, was reduced in writing and was duly communicated
to the official superior. From Exhibit-3, the Forensic Science
Laboratory Report, it transpires, however, that samples were
delivered for examination in the Laboratory on 10.06.2016 through
Special Messenger, which were dispatched on 06.06.2016. The
Forensic Science Laboratory, Patna, upon examination, reached a
conclusion that dry, pressed, greenish brown colored flowering
and fruiting like vegetable substances contained in plastic jars (A-
1 and A-2) were Ganja containing tetra hydro cannabinol (THC)
as their chief intoxicating ingredient.
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
4. The police submitted charge-sheet against all these
appellants alleging commission of the offence punishable under
Sections 20, 22, 23 and 24 of the NDPS Act, whereupon
cognizance was taken of the aforesaid offence by the learned
Special Judge, Araria. Later, the appellants were charged by the
court of commission of the offences punishable under Sections
20(C), 23 and 24 of the NDPS Act. The appellants denied the
charge and claimed to be tried.
5. At the trial, the prosecution examined seven witnesses
with the informant as PW 1. PW 2, PW 4 and PW 5 were the
members of the raiding team. The Investigating Officer deposed as
PW 3. PW6, not an official witness, did not support the
prosecution's case. He has, however, not been declared hostile to
the prosecution's case. PW7, another unofficial witness, did not
support the prosecution's case and he came to be declared hostile
at the instance of the prosecution. As has been noted hereinabove
while referring to the contents of the FIR, seizure list was
prepared, according to the informant, in the presence of Pramod
Rajak and Dlilip Rajak. They did not depose at the trial as
prosecution's witnesses, rather they were examined by the defence
as DW1 and DW2.
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
6. In addition to the oral evidence of the prosecution
witnesses, the prosecution brought on record the following
documentary evidence to substantiate the charge against these
appellants:
S.N. Particular Exhibit Number
1. Self statement of the Exhibit-1
Informant
2. Formal FIR Exhibit-2
3. Seizure List Exhibit-3
4. FSL report Exhibit-4
5. CC of Spl. (NDPS) Case Exhibit-5
No. 18/16.
6. CC of Spl. (NDPS) Case Exhibit-6
No. 01/14.
7. After closure of the prosecution's evidence, the
appellants were examined under Section 313 of the CrPC so as to
give them an opportunity to explain the incriminating
circumstances emerging against them based on the evidence
adduced by the prosecution. They denied such circumstances and
reiterated their plea of innocence.
8. Therefore, the defence witnesses have deposed that
their signatures were obtained on a plain paper at the instance of
village Chowkidar. They denied in their cross-examinations about
the recovery of any contraband in their presence or preparation of
any seizure list.
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
9. The trial court, after having appreciated the evidence
adduced at trial, has recorded conviction of these appellants and
has sentenced them to imprisonment and fine as has been noted at
the outset.
10. Mr. Ajay Kumar Thakur, learned counsel appearing
on behalf of the appellant in Cr. Appeal (DB) No. 361 of 2019, has
submitted that in the present case there has been complete breach
of mandatory statutory requirements under Section 42 and 51 of
the NDPS Act. He argued that as mandatorily required under
Section 42 of the NDPS Act, it was imperative on the part of the
informant to have reduced the secret information in writing and
forwarded the same to his official superior. He contends that there
is no evidence led at the trial by the prosecution to the effect that
the secret informant was never reduced in writing. In support of
his submission, he has placed reliance on the Supreme Court's
decision in case of Boota Singh and others Vs. State of Haryana
reported in (2021) 19 SCC 606 and Dharamveer Prasad Vs. The
State of Bihar and others, reported in (2020) 12 SCC 492.
11. With reference to noncompliance of the requirements
of drawing of samples in the presence of a Magistrate as required
under Section 52A(b) of the NDPS Act, he has placed reliance on
the Supreme Court's decision in case of Union of India Vs.
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
Mohan Lal and another reported in (2016) 3 SCC 379, which
decision has subsequently been followed in a recent decision in
case of Mangilal Vs. State of Madhya Pradesh reported in 2023
SCC Online SC 862: 2023/INSC/634. Reliance has also been
placed in this regard on yet another decision in case of Bothilal
Vs. Intelligence Officer Narcotics Control Bureau, reported in
2023 SCC Online SC 498: 2023/INSC/432. He has further
submitted that there has been apparent delay of nearly a month in
sending the sample to the Forensic Science Laboratory, which is
also a reason why the trial court ought not to have recorded
conviction. Reliance has been placed in this regard on Supreme
Court's decision in case of State of Uttar Pradesh Vs. Hansraj,
reported in (2018) 18 SCC 355. Furthermore, he contends, failure
on the part of the prosecution to produce at the trial the material
exhibits said to have been seized by the police completely
demolishes the prosecution's case of recovery and amounts to
failure on the part of the prosecution to prove recovery of any
incriminating substance from the possession of these appellants.
He has accordingly submitted that the finding of the trial court of
conviction verges on perversity and requires interference by this
Court. The prosecution cannot be said to have established the
charges against the appellants based on the evidence adduced at
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
the trial, in view of the patent failure on the part of the prosecution
to follow mandatory requirements under the provisions of NDPS
Act, he contends.
12. The submissions so advanced by Mr. Thakur have
been adopted by learned counsel appearing in Cr. Appeal (DB) No.
423 of 2019, Cr. Appeal (DB) No. 456 of 2019 and Cr. Appeal
(DB) No. 511 of 2019 while assailing the impugned judgment of
conviction and the order of sentence passed by the trial court.
13. Ms. Shashi Bala Verma, learned Additional Public
Prosecutor has defended the finding of conviction and has
submitted, firstly, that once DW 1 and DW 2 identified their
signatures on the seizure list, they could not have denied the
contents of the seizure list by taking a plea that they had put their
signatures on a plain paper. She argues that apparently the defence
witnesses were gained over by these appellants and based on their
depositions, the court may not doubt preparation of seizure list in
accordance with the statutory prescriptions. She has submitted that
minor deviation from the requirements under the NDPS Act while
causing search, seizure and drawing of samples is of
inconsequential nature and should not be the basis for interfering
with the impugned judgment which is based on a comprehensive
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
evaluation, appreciation and assessment of the evidence adduced
at the trial.
14. We have perused the impugned judgment and order
of the trial court carefully and have gone through the trial court's
records. We have given our thoughtful considerations to the rival
submissions advanced on behalf of the parties.
15. There is no evidence as to when, how and where the
samples were drawn. The FIR does not disclose anything about
drawing of the samples. There is nothing on record to suggest that
any application was made by Investigating Officer or any other
officer before the Court for deputing a Magistrate for drawing of
samples. PW 4, who was a member of the raiding team, in his
evidence, deposed that the samples were drawn by the informant
(PW 1). The law on this point is well settled in case of Mohanlal
(supra), wherein the Supreme Court has clearly held in paragraphs
15 to 17 as under:-
"15. It is manifest from Section 52-A(2)(c)
(supra) that upon seizure of the contraband the same
has to be forwarded either to the officer-in-charge of
the nearest police station or to the officer empowered
under Section 53 who shall prepare an inventory as
stipulated in the said provision and make an
application to the Magistrate for purposes of (a)
certifying the correctness of the inventory, (b)
certifying photographs of such drugs or substances
taken before the Magistrate as true, and (c) to draw
representative samples in the presence of the
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
Magistrate and certifying the correctness of the list
of samples so drawn.
16. Sub-section (3) of Section 52-A
requires that the Magistrate shall as soon as may be
allow the application. This implies that no sooner the
seizure is effected and the contraband forwarded to
the officer-in-charge of the police station or the
officer empowered, the officer concerned is in law
duty-bound to approach the Magistrate for the
purposes mentioned above including grant of
permission to draw representative samples in his
presence, which samples will then be enlisted and the
correctness of the list of samples so drawn certified
by the Magistrate. In other words, the process of
drawing of samples has to be in the presence and
under the supervision of the Magistrate and the
entire exercise has to be certified by him to be
correct.
17. The question of drawing of samples at
the time of seizure which, more often than not, takes
place in the absence of the Magistrate does not in the
above scheme of things arise. This is so especially
when according to Section 52-A(4) of the Act,
samples drawn and certified by the Magistrate in
compliance with sub-sections (2) and (3) of Section
52-A above constitute primary evidence for the
purpose of the trial. Suffice it to say that there is no
provision in the Act that mandates taking of samples
at the time of seizure. That is perhaps why none of
the States claim to be taking samples at the time of
seizure."
16. Relying on the said decision, the Supreme Court, in
case of Bothilal (supra), did not approve the drawing of samples
by the police officer who had seized the contraband and held that
the seizure not being in conformity with the requirements laid
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
down in case of Mohanlal (supra), the prosecution's case that the
substance, which was recovered, was contraband becomes
doubtful. Similarly, in a later decision in case of Mangilal (supra),
the Supreme Court reiterated the mandatory requirement of
making an application to the Magistrate for drawing of samples
soon after a seizure is made with reference to the provisions under
Section 52A(2) of the NDPS Act. Explaining the reason for strict
compliance of the said provision, the Supreme Court observed in
case of Mangilal (supra) that the objective behind the provision is
to have an element of supervision by the Magistrate over disposal
of seized contraband. Paragraph 5 of the said decision is relevant
and is being re-produced herein below:-
"5. Sub-section (2) of Section 52A of the
NDPS Act mandates a competent officer to prepare
an inventory of such narcotic drugs with adequate
particulars. This has to be followed through an
appropriate application to the Magistrate concerned
for the purpose of certifying the correctness of
inventory, taking relevant photographs in his
presence and certifying them as true or taking
drawal of samples in his presence with due
certification. Such an application can be filed for
anyone of the aforesaid three purposes. The objective
behind this provision is to have an element of
supervision by the magistrate over the disposal of
seized contraband. Such inventories, photographs
and list of samples drawn with certification by
Magistrates would constitute as a primary evidence.
Therefore, when there is non-compliance of Section
52A of the NDPS Act, where a certification of a
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
magistrate is lacking any inventory, photograph or
list of samples would not constitute primary
evidence."
17. Further, in case of Yusuf @ Asif Vs. State, reported
(2023) SCC Online SC 1328: 2023 INSC 912, the Supreme
Court, reiterating the same view, has held that the samples must be
drawn in presence of a Magistrate and the list thereof on being
certified alone would constitute primary evidence for the purpose
of the trial.
18. It can be easily inferred from the evidence adduced
at the trial that the prosecution miserably failed to carry out the
mandatory requirements stipulated under Section 52A(3) of the
NDPS Act and in such circumstance as the prosecution failed to
conclusively prove that the samples, which were sent to Forensic
Science Laboratory for examination, were drawn from the
substance seized by the raiding team from the possession of these
appellants. The said doubt deepens for the failure on the part of the
prosecution to produce the seized contraband substance as material
exhibit at the trial. It is manifest that no evidence as regards
destruction of the contraband was adduced at the trial nor material
exhibits were produced. The failure on the part of the prosecution
to produce the material exhibits at the trial is fatal to the
prosecution's case.
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
19. Further, it is the prosecution's case that the vehicle
seized by the police was not carrying any registration number, the
prosecution has not been able to establish any connection between
these appellants and the vehicle.
20. The last but not the least, the police is said to have
seized the contraband on 09.05.2016, which was sent for forensic
examination on 06.06.2016, nearly one month thereafter. Reliance
has rightly been placed by learned counsel for the appellants on
the Supreme Court's decision is case of Hansraj (supra), wherein
the Supreme Court affirmed the judgment of the Allahabad High
Court acquitting the accused primarily on the ground of delay in
sending the samples to the Forensic Science Laboratory.
21. We further find, in the present case, that the
prosecution did not lead any evidence regarding manner in which
contraband substance, said to have been recovered by the police
were safely stored. At the cost of repetition, we mention that the
prosecution neither proved destruction of the seized contraband
nor did it produce the same before the trial court as material
exhibit.
22. In case of Ashok v. State of M.P., reported in (2011)
5 SCC 123, the Supreme Court has held that in the absence of
production of the contraband as material exhibit before the trial
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
court there was no evidence to connect the forensic report with the
substance that was seized from the possession of the appellant of
that case.
23. In case of Vijay Jain v. State of M.P., reported in
(2013) 14 SCC 527, the Supreme Court reiterated the view
expressed in case of Jitendra v. State of M.P., reported in (2004)
10 SCC 562 and observed that in a trial of an offence under the
NDPS Act, it is necessary for the prosecution to establish by the
cogent evidence that the alleged quantities of the contraband goods
were seized from the possession of the accused and the best
evidence to prove the said fact was to produce during the trial, the
seized materials as material objects and where the contraband
material, alleged to have been seized, are not produced and there is
no explanation to failure to produce the contraband material by the
prosecution, mere oral evidence that 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 turned
hostile. The views expressed in case of Vijay Jain (supra) and
Ashok (supra) has been reiterated in case of Vijay Pandey v. State
of U.P., reported in (2019) 18 SCC 215, wherein it has been held
that where the prosecution failed to produce the said seized sample
itself, mere production of laboratory report that the sample tested
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
was narcotics cannot be conclusive proof by itself. The sample
seized and that tested have to be correlated, the Supreme Court has
held.
24. We also find that there is no evidence to the effect
that the secret information received by the informant was reduced
in writing much less the same having been transmitted to
immediate official superior, which is one of the mandatory
conditions for carrying out a search without warrant under Section
42 of the Act. Primarily on the ground of failure to the requirement
under Section 42 of the NDPS Act, the Supreme Court in case of
Dharamveer Prasad (supra), relying on constitutional bench
decision in case of Karnail Singh v. State of Haryana, reported in
(2009) 8 SCC 539 acquitted the appellant of that case.
25. For the reason noted above, the prosecution cannot
be said to have proved recovery of any substance found to be
Ganja in chemical examination from possession of these
appellants. Their conviction recorded by the trial court requires
interference. They deserve to be acquitted by giving them benefit
of doubt.
26. Accordingly, the impugned impugned judgment of
conviction dated 27.02.2019 passed by learned 1st Additional
Sessions Judge-cum-Special NDPS Judge, Araria, arising out of
Patna High Court CR. APP (DB) No.361 of 2019 dt.24-01-2024
Tarabari P.S. Case No. 34 of 2016, Special NDPS Case No. 17 of
2016, CIS No. 78 of 2016, is hereby set aside. The appellants stand
acquitted of the charge of commission of offences punishable
under Sections 20(b)(ii)(c) and 23(c) of the NDPS Act. The order
of sentence dated 07.03.2019, also stands set aside.
27. The appellants, namely, Pappu Kumar and Gulabi
Singh @ Gulab Chand Mandal of Cr. Appeal (D.B.) No. 361 of
2019 are in custody. Let them be released forthwith, if not required
in any other matter.
28. The appellants, namely, Praveen Kumar Mandal of
Cr. Appeal (D.B.) No. 423 of 2019, Chamru Singh of Cr. Appeal
(D.B.) No. 456 of 2019 and Suresh Choudhary of Cr. Appeal
(D.B.) No. 511 of 2019 are on bail. They stand discharged from
the liabilities of the bail bonds and the sureties, if any.
(Chakradhari Sharan Singh, J)
(G. Anupama Chakravarthy, J)
Pawan/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 31.01.2024.
Transmission Date 31.01.2024.
