Patna High Court
Umesh Pradhan And Anr vs The State Of Bihar on 25 January, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1182 of 2018
Arising Out of PS. Case No.-399 Year-2014 Thana- UDWANTNAGAR District- Bhojpur
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1. Umesh Pradhan and Anr S/o Saudagar Pradhan, Resident of Village- Barka
Dakaich, P.S.- Krishna Brahm, District- Buxar.
2. Deepak Singhm, S/o Ramakant Singh, Resident of Village- Nari Pahar, P.S.-
Nirsa, District- Dhanbad, Jharkhand.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Dhirendra Kumar Sinha, Advocate
For the Respondent/s : Mr. Sri Shyed Ashfaque Ahmad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 25-01-2024
1. Heard learned counsel appearing for the
appellants as well as learned APP appearing for the State.
2. The present appeal preferred by both above
named appellants/convicts challenging the judgment of
conviction dated 30.01.2018 and order for sentence dated
09.02.2018
passed in connection with N.D.P.S. Case No
12/2014 arising out of Udwant Nagar P.S. Case No. 399/2014,
whereby and whereunder learned 2nd Additional Sessions Judge,
Civil Court, Bhojpur (Arrah), Bihar-802301 convicted the
appellants under Section 20(b)(ii)(c) of Narcotic Drugs and
Psychotropic Substances (N.D.P.S.) Act, 1985 and has
sentenced them to undergo rigorous imprisonment for 10 years
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
with fine of Rs. 01 Lakh each and in default of payment of fine
appellants/convicts to undergo additional sentence of one year
of imprisonment.
3. The case of prosecution as it springs from the
First Information Report, which is based upon self-statement of
S.I. Mithlesh Kumar (PW-6) that on the basis of secret
information, he alongwith his police team intercepted a mini
truck having registration no. WB29-1226 at about 23:00 hours
on Arrash Sasaram Road in front of the police station where on
inspections, he found total of 109 packets of Ganga, where 105
packets were of 2 Kg and 4 packets were of 5 Kg in weight,
total of 230 Kg. He immediately informed about the recovery of
aforesaid narcotic substance/contraband to his senior officer and
also called circle officer namely, Rajsekhar to join the process of
search, seizure and sampling, being executive magistrate. It
transpires from the narration of FIR that on spot itself police
arrested accused/appellants, namely, Umesh Pradhan and
Deepak Singh. From the perusal of FIR. it also appears that
while police team was in process of intercepting mini truck
accused/appellants tried to escape but after short chasing they
have been arrested.
4. On the basis of aforesaid written
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
information/application, police registered Udwant Nagar P.S.
Case No. 399/2014 dated 14/11/2014 under Section 20(b)(ii)(C)
and 22(C) of N.D.P.S. Act, where after completion of
investigation submitted charge-sheet, whereupon learned
Special Court after going through the material collected during
the course of investigation took cognizance for the offence
under Section 20(b)(ii)(C) and 22(C) of N.D.P.S. Act.
5. After compliance of of Section 207 of Cr.P.C.,
i.e. by supplying the police papers and materials collected
during the investigation as per provision of Section 207 of
Cr.P.C., charges were framed and explained to
appellants/accused, which they pleaded "not guilty" and claimed
trial.
6. Prosecution as to establish its case altogether
examined seven prosecution witnesses, as PW- 1 Kumar Ranjit
Singh, PW-2 Pappu Kamar, PW-3 Santosh Kumar, PW-4 Shiv
Kamar Sah, PW-5 Radha Prasad Yadav, PW-6 Mithlesh
Kumar(Informant), PW-7 Shiv Shankar Paswan (Investigating
Officer).
7. The prosecution also relied upon following
exhibits as to substantiate its case, which are under:
1. Exhibit 1- Signature of Kumar Ranjit
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
Singh on the seizure list.
2. Exhibit 2- Writing of the informant
Mithlesh Kumar SHO on seizure list
3. Exhibit 2/1 - Signature of the informant
Mithlesh Kumar SHO on seizure list.
4. Exhibit 2/2 - Initial signature of
Anchaladhikari (CO) Raj Sekhar Kumar on
seizure list.
5. Exhibit 2/3 - Signature of the Rajesh Nat
on seizure list
6. Exhibit 3 - Signature and writing of the
Mithlesh Kumar SHO on self written
statement
7. Exhibit 4 - Signature of the Investigating
Officer Shiv Shanakr Paswan on charge-
sheet.
8. Exhibit 5 - Report of Chemical
Laboratory, Custom House Kolkata
9. Exhibit 6 - FSL Patna report of the seized
contraband i.e. "Ganja".
8. On the basis of incriminating materials and
evidences as surfaced during the course of trial, statement of
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
accused/appellants were recorded under Section 313 of Cr.P.C.,
where they simply denied and show their complete innocence.
9. No oral witnesses or documents were produced
in defence during the trial on behalf of the accused/appellants.
10. Learned trial court on the basis of evidences
surfaced during the course of trial convicted both
accused/appellants, as discussed above and sentenced to
undergo rigorous imprisonment for ten years alongwith fine of
Rs. 1,00,000/- where in default of payment of fine further
ordered to undergo one year imprisonment. Being aggrieved
with the said judgment of conviction and order of sentence, the
present appeal was preferred.
11. Hence the present appeal.
12. Learned counsel appearing for the
accused/appellants, while assailing the impugned judgment
submitted that finding of conviction as recorded by learned trial
court in views of evidences as surfaced during the course of trial
and also in the background of settled legal propositions is
appearing bad in the eyes of law. It is submitted that seized
articles have not been produced during the trial and no
explanation has been furnished by the prosecution for non-
production of same during the trial. In support of his
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
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 pointed out by learned counsel that out of
two seizure list witnesses one namely, Rajesh Nat was not
examined during the trial, whereas the another witness, who is
Kumar Ranjit Singh was examined as PW-1, who specifically
stated in his cross-examination that he signed over plain paper
and nothing was seized before him. It is submitted that this
witness was not declared hostile and as such prosecution is
bound to accept the version of this witness and if it is so then
entire case of prosecution appears false. It is also submitted that
compliance of Sections 42, 52-A 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 placed 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. It is also submitted that the prosecution
witnesses took samples after mixing the contraband from
different packets, which is also appearing against the settled
positions of law. It is also pointed out that the version of
prosecution witnesses making the facts contradictory, whether
both appellants were arrested from the offending vehicle i.e.
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
WB 29-1226 or they were arrested after a short chase. It is also
submitted that compliance of Standing "Order 01 of 1988"
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. vs. Hansraj (2018) 18
SCC 355.
13. Per contra, learned APP Sri Shyed Ashfaque
Ahmad appearing for the State contended that the police
personnels and D.I.U. (District Intelligence Unit) team were
present at the time of recovery of alleged contraband and
supported the case of recovery and their testimony are
consistent with each other, save and except minor
contradictions and on that score it cannot be said that judgment
of conviction as recorded by the trial court is bad in the eyes of
law. It is pointed out that the "Ganja" was seized at the place of
occurrence itself. It is further submitted that merely on the basis
that seizure list witnesses were not examined or not supported
the case of prosecution during the trial on that ground alone the
conviction of appellants cannot be looked with tinted glass.
14. Taking note of the submission of learned APP,
it is further submitted by learned counsel for the
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
appellants/convicts that no evidence adduced during the trial
that seized contraband i.e. "Ganja" was ever kept in
"Malkahna", rather it was kept in police station, he argued that
the contradictions amongst depositions of witnesses cannot be
said minor as even the parties of raiding team are not appearing
consistent regarding compliance of the mandatory provisions
regarding sampling, seizure etc.
15. Upon hearing the learned counsel for the
respective parties and on perusal of the records, it appears to re-
appreciate the evidences for the purpose of just disposal of
present appeal, which are as:
16. PW-2, who is Pappu kumar, stated that on
interception of mini truck, which was TATA 407, having
registration no. WB 29-1226, the person, who was on the driver
seat disclosed his name as Umesh Pradhan, whereas another
person, who was sitting beside him disclosed his name as
Deepak Singh. It is stated by him that total of 230 Kg of
"Ganja" was recovered from said vehicle in total of 109 packets.
He also stated that a sample was drawn and thereafter, it was
sent for FSL. He is silent whether the search or sampling was
made in presence of Magistrate but from his examination-in-
chief it appears that the compliance of Section 42 of N.D.P.S.
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
not appears to be followed in present case, rather on cross-
examination he stated that weighing machine was brought from
some nearby shopkeeper, where he specifically stated that he did
not sign any paper during the process.
17. PW-3 is Santosh Kumar, who is also the
constable of DIU team and narrated the same fact in his
examination-in-chief as that of PW-2 and same is not required to
be repeated for the sake of convenience and brevity except the
fact that he stated the number of packets was more than 100
without specifying the exact number, rather he deposed that it
was total of 230 Kg. He is silent about sampling and seizure
and also on the fact whether it was sent to Malkhana or police
station.
17.1 Upon cross-examination he deposed before
the court that vehicle was parked inside the thana, where
documents were prepared. He also deposed that he did not sign
any paper.
18. PW-4 is Shiv Kumar Sah. He also stated in
examination-in-chief that recovery of "Ganja" of 230 Kg in 109
packets was made. He stated that the arrested persons i.e.
appellants/accused and seized narcotics were brought to police
station.
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
18.1 Upon cross-examination, he stated that two
persons were called by Bada Babu (SHO) near to place of
occurrence. It was also stated by him that after preparing seizure
list truck was brought to police station. He categorically stated
that he did not sign on seizure list. He specifically stated that he
is not aware about the fact that what happened subsequently at
police station. It was stated by him that both appellants/accused
persons were arrested while sitting inside the vehicle where one
was the driver.
19. PW-5 is Radha Prasad Yadav. He also
supported the case of prosecution through his examination-in-
chief and stated that both accused/appellants were arrested from
vehicle itself and in presence of two independent witnesses
packets were recovered containing total of 230 Kg of "Ganja".
He is silent over the number of packets as earlier deposed by
prosecution witnesses. It is further deposed by him that seizure
list was prepared regarding seized "Ganja" and thereafter, seized
materials were brought to police station.
19.1 Upon cross-examination, he stated that on the
date of occurrence, he was posted with District Intelligence Unit
(DIU). He failed to disclose about the number of packets when
specifically asked in cross-examination, where he further stated
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
that he did not bring out those packets from the hidden shelf of
the mini truck but stated that it was 230 Kg. It was stated that
weighing machine was brought from one nearby shopkeeper
namely, Jitendra. He stated that he was not involved in weighing
process. It was stated by him that the documents were prepared
at the place of occurrence itself but he failed to disclose whether
he signed over search/seizure list or not.
20. PW-6 is Mithlesh Kumar. He also supported
the case of recovery of contraband i.e. "Ganja" from mini truck
having registration no. WB 29-1226. He stated specifically that
as the vehicle came near to him the driver and one person
jumped from vehicle but they were surrounded by police
personnels. They were brought before CO (Anchladhikari),
who asked them regarding information of contraband
whereupon after their consent, search was made before two
independent witnesses, where on the first instance, it was found
empty but as a strong smell of "Ganja" was coming, whereupon
accused/appellants disclosed that same is kept in a secret cell,
which was opened by police and from there 109 packets were
recovered having total of 230 Kg of "Ganja", where 105 packets
were of 2 Kg and 4 packets were of 5 Kg. It was stated that
from each packet, sample was taken and 2 packets of samples
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
were prepared. He stated to prepare the seizure list which on his
identification was exhibited as Ext. No. 2 and he identified his
signature thereof, which on his identification exhibited as Ext.
No. 2/1. This witness also identified the signature of CO
(Anchladhikari) Rajesh Kumar, which on his identification
exhibited as Ext. No. 2/2. He also identified the signature of
seizure list witness namely, Rajesh Nat, which was exhibited as
Ext. No. 2/3. He also identified the self written statement,
which is the basis of present FIR, which on his identification
exhibited as Ext. No. 3.
20.1 Upon cross-examination, it was stated by him
that the independent witnesses were not called, rather they were
present at the place of occurrence and before them the search
operation was made. No paper was prepared regarding his
personal search and also regarding the search of independent
witnesses. He also stated that he cannot say about the distance
at which accused/appellants were arrested. It was also stated by
him that the sample is not present before him right now. He also
failed to disclose about the keeping of sample and also failed to
disclose whether it was sent anywhere. He stated that weighing
stones were of 1 Kg, 2 Kg and 5 Kg.
21. PW-7 is Shiv Shankar Paswan. He is the
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
investigating officer of this case and recorded the statement of
witnesses. He took permission on 21.11.2014 to send seized
sample for forensic test and upon having such order it was sent
to FSL Patna and also to FSL Kolkata. He categorically stated
upon cross-examination that no exhibits were before him on the
day of his deposition. He was not present at the time of recovery
of seizure/contraband.
22. 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 under the
NDPS Act, it was necessary for the
prosecution to establish by cogent
evidence that the alleged quantities
of the contraband goods were seized
from the possession of the accused
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
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 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."
23. Coming to the next submission made on behalf
of the appellants regarding the illegality of the sampling of the
seized contraband, it is manifest from the evidence that the
representative samples were not drawn from the seized
substance and sent to the expert in the designated laboratory for
chemical analysis and to report in accordance with law. It would
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
also be evident from the evidence that the seized substance and
the samples were not handled properly in the prescribed manner.
24. 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
detailed 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
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
package/ 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
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
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
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
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
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
accused, 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
affixed. If the person, from whose
custody 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 duplicate of each of the
samples."
25. The question as to whether or not the
compliance of the guidelines issued by Standing Instruction No.
1 of 1988 would vitiate the trial was considered by the Hon'ble
Supreme Court in Khet Singh Vs. Union of India since
reported in AIR 2002 SCC 1450, Noor Aga Vs. State of
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
Punjab since reported in (2008) 16 SCC 417 and Union of
India Vs. Balmukund and others since reported in 2012 (9)
SCC 161.
26. 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
followed 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 by the officer
in-charge of the investigation......."
27. 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
issued should not only be
substantially complied, but also in a
case involving penal proceedings,
vis-à-vis a departmental
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
proceeding, 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 obligatory 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
decision of this Court in Union of
India v. Azadi Bachao Andolan
[(2004) 10 SCC 1] held that
statutory instructions are
mandatory in nature.
91. The logical
corollary 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 insisted upon for so that
sanctity of physical evidence in
such cases remains 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
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
that had such evidence been
produced, the same would have
gone against the prosecution."
28. In Union of India versus Balmukund (supra),
the Hon'ble Supreme Court observed in para 36 as under:
"36. There is another aspect of the matter
which cannot also be lost sight of. Standing
Instruction 1/88 which has been issued
under 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."
29. From the aforesaid discussed evidences and
positions of law, it appears that in present case, several material
contradictions are appearing, which cannot be ignored. The first
and foremost material contradiction was surfaced from the
depositions of PW-2, PW-3 and PW-4 that both accused/
appellants were arrested when they were sitting in mini truck
but from the deposition of PW-6 it appears that they were not
present inside the mini truck rather they were arrested from a
short distance from vehicle in issue, making the presence of
accused/appellants inside the vehicle doubtful. Another material
aspect as surfaced out of evidence is that the seized contraband
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
was not produced before the court during the trial or it was
destroyed earlier, which appears in the violations of Section 52-
A of N.D.P.S. Act and also in violation of standing order 01 of
1988 as discussed above. It also transpires from the deposition
of PW-2 that the weighing machine was automated and it was
not manual but weighing stones of 2 Kg and 5 Kg were used.
PW-6 during his cross-examination stated that weighing stones
were of 1 Kg, 2 Kg and 5 Kg and remained silent, whether it
was automated weighing machine or not. It also transpires from
the deposition of PW-6 that independent witnesses were present
at the place of occurrence itself but from the depositions of PW-
4, it appears that two independent persons were called by Bada
Babu(SHO). This material thing makes sampling, weighing and
making seizure list witnesses doubtful. The another aspect,
which was ignored by learned trial court, is the examination of
independent witnesses in present case, out of two independent
witnesses, namely, Rajesh Nat and Kumar Ranjit Singh, Rajesh
Nat was not examined but Kumar Ranjit Singh was examined as
PW-1, who completely denied any seizure before him and and
said to sign over plain paper only. Having such material
contradictions and violations of mandatory provisions of law as
discussed, it cannot be said that prosecution established its case
Patna High Court CR. APP (SJ) No.1182 of 2018 dt.25-01-2024
beyond reasonable doubts against accused/appellants.
30. Accordingly, the present appeal stands allowed.
31. The impugned judgment of conviction dated
30.01.2018 and the consequent order for sentence dated
09.02.2018 passed by the learned 2nd Additional Sessions Judge,
Civil Court, Bhojpur (Arrah), Bihar-802301 in connection with
N.D.P.S. Case No 12/2014 arising out of Udwant Nagar P.S.
Case No. 399/2014 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.
32. LCR, if any, be sent back to learned trial court
along with the copy of this judgment. Fine, if any, paid by
accused/appellants in furtherance of order of sentence, be
returned to them immediately.
(Chandra Shekhar Jha, J)
Archana/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 02.02.2024
Transmission Date 02.02.2024
