Patna High Court
Shrawan Nat vs The State Of Bihar on 3 May, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1145 of 2017
Arising Out of PS. Case No.-192 Year-2012 Thana- BARACHATTI District- Gaya
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Shrawan Nat, Son of Neklal Nat, R/o Chand Pali, Bind Dera, P.S.- Simri,
District- Buxar.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Chandra Kant, Amicus Curiae
For the Respondent/s : Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 03-05-2024
The appellant stands convicted under
Section 20 (b)(ii)(c) of the N.D.P.S. Act, 1985 vide
judgment dated 25.07.2017 passed by the learned 1 st
Additional District & Sessions Judge, Gaya in N.D.P.S.
Case No. 12 of 2012, arising out of Barachatti P.S.
Case No. 192 of 2012. By order dated 02.08.2017, he
has been sentenced to undergo R.I. for twelve years, to
pay a fine of Rs. 1,00,000/- and in default of payment
of fine, to further suffer R.I. for two years.
Patna High Court CR. APP (DB) No.1145 of 2017 dt.03-05-2024
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2. 100 kilograms of Ganja is said to have
been recovered from a box of a vehicle which
apparently was being driven by the appellant.
3. Hence, the case against him.
4. With respect to the owner of the vehicle,
viz. Chandrawati Devi, the investigation has been kept
pending.
5. The Advocate-on-record, viz., Mr. Rakesh
Narayan Singh, has given no objection in the case. We
have requested Mr. Chandra Kant, the learned
Advocate, to be amicus in this case. He has accepted
the afore-noted request and has assisted this court in
the hearing of this case.
6. The State has been represented by Mr.
Abhimanyu Sharma, the learned APP.
7. The FIR was lodged by Krishna Kumar
(P.W. 2) on 04.05.2012 alleging that on the same date,
while he along with the police party was on patrolling
duty, he found one pick-up van bearing Reg. No. BR
Patna High Court CR. APP (DB) No.1145 of 2017 dt.03-05-2024
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04D 6428 being driven in a rash and negligent manner.
Seeing the police vehicle, the driver of the said pick-up
speeded up the vehicle. While doing so, he lost control
and the vehicle met with an accident. The driver wanted
to run away but was apprehended. When the vehicle
was searched, it was found that a box was kept in the
body in which one quintal of Ganja was kept. In front of
two of the local witnesses viz. Kameshwar Yadav (P.W.
6) and Sita Paswan (P.W. 3), a seizure list was
prepared. On inquiry from the appellant, the driver of
the pick-up van, it was learnt that the vehicle belonged
to one Chandrawati Devi of Saran district. The vehicle
as also the seized narcotics were brought to the police
station, whereafter the formal FIR was registered.
8. On this self-statement of P.W. 2, referred
to above, a case vide Barachatti P.S. Case No. 192 of
2012, dated 04.05.2012, was registered for
investigation against the appellant for the offence under
Section 20 of the N.D.P.S. Act.
Patna High Court CR. APP (DB) No.1145 of 2017 dt.03-05-2024
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9. The police, after investigation, submitted
charge-sheet against the appellant and kept the
investigation pending with respect to Chandrawati Devi,
the so-called owner of the vehicle.
10. The Trial Court, after having examined
six witnesses on behalf of the prosecution including the
Investigator and two of the search and seizure
witnesses, convicted and sentenced the appellant as
aforesaid.
11. Mr. Chandra Kant, the learned Amicus
has argued that no provision of the N.D.P.S. Act, 1985
has been followed in drawing samples of the Ganja and
sending it immediately for the forensic examination. He
has further submitted that there is nothing on record as
also in the judgment which would indicate that the
material exhibit or its destruction note was placed
before the Trial Court for confirmation that the narcotics
was seized in the operation as narrated by P.W. 2, the
informant. He has further submitted that there has
Patna High Court CR. APP (DB) No.1145 of 2017 dt.03-05-2024
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been an unusual delay in sending the samples for
forensic examination. The samples were sent on
28.06.2012
after obtaining permission of the learned
Trial court, but the same was received on 04.07.2012.
The delay is absolutely inexplicable.
12. Apart from this, it has been submitted
that the seizure witnesses also have not supported the
prosecution case in its entirety as P.W. 6 has been
declared hostile; whereas P.W. 3 appears to be a stock
witness of the police.
13. We have examined the deposition of the
witnesses, especially of the informant and the
Investigator and have found that the submission raised
on behalf of the appellant by the amicus is correct.
14. Though, the informant (P.W. 2) claims
to have seized the Ganja at the place of occurrence
only, but there is nothing on record to indicate as to
how the consignment of the narcotics was weighed.
There is no reference to any weighing scale being
Patna High Court CR. APP (DB) No.1145 of 2017 dt.03-05-2024
carried by the informant in his police vehicle. All that he
has said in his deposition is that he had paper and
carbon with him, with which he prepared the seizure
list. There is no reference of any weighment at all,
either in the FIR or in his deposition.
15. Apart from this, we have also found it to
be strange that the entire consignment of narcotics was
kept in the Malkhana of the police station and was not
sent to the Malkhana, especially designated for the
purposes of storing the seized narcotics before it is
destroyed after obtaining the permission of the Trial
Court.
16. The samples have not been drawn. This
appears from the deposition of the informant/P.W. 2 as
also of the Investigator (P.W. 5).
17. The Investigator (P.W. 5) has stated
that he had drawn the samples from the consignment
kept in the Malkhana of the police station. There is no
reference of any marking or of any methodology of
Patna High Court CR. APP (DB) No.1145 of 2017 dt.03-05-2024
drawing samples from the consignment of narcotics. It,
therefore, appears to be only a paper work.
18. We have further found from the Ext.-4
that permission was sought by the Investigator (P.W. 5)
on 28.06.2012 from the learned Trial Court for sending
the drawn sample for forensic examination. The exhibit
does not reflect how the samples were drawn, or
whether it was ever drawn. It was only communicated
to the Trial Court that samples are required to be sent
to the forensic laboratory for confirmation that the
narcotic is Ganja.
19. Apart from that, we have also found
from the forensic report of the laboratory that the
consignment had reached the laboratory on
04.07.2012. The delay is too enormous to be explained
by the prosecution. After all, the provisions of the
N.D.P.S. Act are very stringent and, therefore, strict
compliance of the provisions are absolutely necessary to
avoid any false implication and mis-trial.
Patna High Court CR. APP (DB) No.1145 of 2017 dt.03-05-2024
20. There cannot be any doubt that there is
nothing on record to indicate that there has been any
compliance of Standing Instruction Nos. 1 of 1988 and
1 of 1989 with respect to the seizure and sampling. The
entire narcotics was kept in the police Malkhana and,
therefore, there could be no certainty there was no
tampering with the seized narcotic. There is no record
of any sample having been drawn and in what manner,
which was required to demonstrated during the Trial for
the prosecution to take the case to any logical
conclusion.
21. The delay, as has already been noted, is
absolutely detrimental to the prosecution case. This,
coupled with the fact that the witnesses to the search
and seizure did not support the prosecution case in its
entirety, give a death blow to the prosecution case.
22. Kameshwar Yadav (P.W. 6) has denied
that the seizure or sampling was made in his presence.
He has been declared hostile.
Patna High Court CR. APP (DB) No.1145 of 2017 dt.03-05-2024
23. Sita Paswan (P.W. 3) though has said
that in his presence, the seizure was done, but some
statements which he has made, apart from his being a
witness to the seizure, makes his deposition highly
unreliable. He saw that the appellant had been injured
and had been bleeding and, therefore, was sent to the
hospital on the police jeep by P.W. 2. This statement
has not been confirmed by P.W. 2, who only claims to
have sent the appellant to the hospital along with a
constable.
24. That apart, two of the other witnesses,
viz., Laxmi Yadav and Hira Lal Yadav are absolutely
vague in their deposition before the Court. Laxmi Yadav
had reached the P.O. only after the vehicle had turned
turtle and the appellant/driver was sent to the police
station. Nothing had happen before him and he was
only shown the consignment of narcotics by P.W. 2.
25. Hira Lal Yadav (P.W. 4) identified the
appellant as someone who looked like the person who
Patna High Court CR. APP (DB) No.1145 of 2017 dt.03-05-2024
was arrested on the spot and who is the appellant
before this Court.
26. Thus, their deposition also is of no help
to us to come to the conclusion that the prosecution has
come up with an untainted version.
27. What is most surprising for us to note is
that the Trial Court never insisted for the production of
the material exhibit, viz., the consignment of Ganja.
There is no destruction report also on record. This only
signifies that nothing was produced before the Trial
Court or else, it would have been taken note of and
would have been reflected in the judgment of
conviction.
28. The Supreme Court in Khet Singh vs.
Union of India (AIR 2002 SCC 1450); Noor Aga vs.
State of Punjab and Anr. (2008 (16) SCC 417) and
Union of India vs. Bal Mukund and others (2009 12
SCC 161) has held that the instruction issued by the
Narcotic Control Bureau, New Delhi are to be followed
Patna High Court CR. APP (DB) No.1145 of 2017 dt.03-05-2024
by the Officer-in-Charge of the investigation of the
crimes coming within the purview of the N.D.P.S. Act.
Even though those instructions may not have the force
of law, but those are intended to guide the officer to
ensure that a fair procedure is adopted in investigation.
29. The forensic report though states that
the samples sent to it was Ganja, but which sample was
sent remains completely under the wraps.
30. For the informant and Investigator
having completely flouted the provisions contained in
the N.D.P.S. Act, the prosecution has miserably failed
to prove the case that the appellant was driving the
vehicle and that from the vehicle driven by him, 100
kgs. of Ganja was recovered. The weighment of the
consignment seized also appears to be completely
doubtful, as has been noted by us earlier.
31. Does it mean that the appellant was
falsely accused in this case?
32. It appears to be so.
Patna High Court CR. APP (DB) No.1145 of 2017 dt.03-05-2024
33. There was an accident and the appellant
had been injured. The accident may have been by the
police vehicle. All these inferences are likely to be
drawn only because the informant and the Investigator
did not follow the instructions of the Narcotics Control
Bureau and the provisions of N.D.P.S. Act.
34. With all these failings at the hands of
the P.W. 2 and P.W. 5, we have no option, but to set
aside the judgment and order of conviction and acquit
the appellant of the charge leveled against him.
35. The appeal succeeds.
36. We do not know whether the appellant is
still in jail as twelve years have passed by since he was
arrested in this case in the year 2012, he is directed to
be released from jail forthwith, if he is still lodged in
jail.
37. Let a copy of this judgment be
dispatched to the Superintendent of the concerned jail
forthwith for compliance and record.
Patna High Court CR. APP (DB) No.1145 of 2017 dt.03-05-2024
38. The records of the case be returned to
the Trial Court forthwith.
39. Interlocutory application/s, if any, also
stand disposed off accordingly.
40. We have appreciated the efforts made
by Mr. Chandra Kant, the learned Amicus. Since, he is
in the panel of Legal Services Authority, he declines to
accept any payment for the services rendered by him in
this case.
(Ashutosh Kumar, J)
(Jitendra Kumar, J)
manoj/paveen-II-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 06.05.2024
Transmission Date 06.05.2024
