CRIMINAL APPEALS No.923 & 1009, BOTH OF 2007
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Against the order / judgment of Sri Jitendra Mohan
Sharma, District and Sessions Judge-cum-Special Judge,
(N.D.P.S. Act), Buxar, dated 15th June, 2007 passed in
N.D.P.S. Act Cases no. 2 & 2A of 2003.
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SAHAMAT HUSSAIN @ SOHAMAT MIAN——Appellant
(In Cr.Appeal no.923/2007)
AKBAR HUSSAIN———————–Appellant
(Cr.Appeal no.1009/2007)
Versus
The STATE OF BIHAR—————–Respondent
(In both Appeals)
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For the Appellant : M/s Rana Pratap singh &
Rakesh Kumar
For the State : Ms. Shashi Bala Verma
(In Cr.Appeal 923/2007)
For the State : Mr. Ashish Kr. Sinha,
(In Cr.Appeal 1009/2007)
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P R E S E N T
THE HON’BLE MR. JUSTICE SHYAM KISHORE SHARMA
THE HON’BLE MR. JUSTICE AKHILESH CHANDRA
Akhilesh Chandra, J. Both these appeals arise out of common
judgment passed by Sri Jitendra Mohan Sharma,
Sessions Judge-cum-Special Judge, N.D.P.S. Act in
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N.D.P.S. Act Case nos. 2 and 2A, both of 2003 under
Sections 20 (b) (ii) (c) of the N.D.P.S. Act, have been
heard together and are being disposed of by this
common judgment.
2. The appellants are respectively father
and son, the son is appellant in subsequent appeal but
was apprehended at the spot and was facing trial under
original case during which his father co-named accused
could subsequently been produced and remanded. A
separate trial was initiated against him but subsequently
both the trials proceeded simultaneously and
amalgamated.
3. The appellants have preferred the
appeals against judgment of their conviction for the
offence under Sections 20(b)(ii)(c) of the N.D.P.S. Act
and sentenced to undergo rigorous imprisonment for 12
years each and also to pay fine of rupees one lac and
twenty five thousand each and in default whereof to
undergo further rigorous imprisonment for two years.
4. The prosecution case, in brief, is that the
informant, Officer-in-charge, Simri Police Station on
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confidential information that the appellants are indulged
in business of narcotic substance and have kept ganja in
huge quantity in the house of one Harihar Sah, a co-
villager, residing at Bokaro with his entire family. So
higher authorities were informed and on getting due
authorization a raiding team was organized and the
team with all relevant persons including a Gazetted
Officer, P.W.13, arrived at the house of appellants
where out of several villagers assembled, two persons as
independent witnesses were called. The father
Sahamat Hussain was not available but his son, the
appellant in latter appeal, was present with whose
consent, initially search was conducted in the house of
the appellants. Nothing was found there. However, the
party proceeded towards nearby house of Harihar Sah
under custody and control of the appellants one of the
rooms was unlocked by Akber Hussain (the appellant)
himself from the key in his pocket wherein huge
quantity of ganja and its powder was recovered besides
some weighing pot and watts. However, the raiding
party was also prepared with independent weighing
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facility. The Ganja kept in four bags was, after
weighing, it could come as 21, 24, 27 and 24 Kgs packs
totaling 96 Kgs and in nine different packets ganja
powder weighing 19 , 20, 16, 14, 19, 20, 12 and 12 kgs
totaling to 157 Kgs could be recovered in presence of
the authorities. Appellant Akber Hussain was taken into
custody. Samples were prepared and sealed. The raiding
Party with the articles and apprehended accused returned
to the Police Station. Subsequently, sample was sent for
Chemical examination and after completion of
investigation charge sheet was submitted against both
the appellants.
5. Learned counsel for the appellants
vehemently submitted that there is absolutely no
material against them. As per prosecution, the Police
was well informed since beginning that the articles
recovered are kept in the house of one Harihar Singh
from where it was said to be recovered but there is none
to say that the said house, which was in dilapidated
condition, remained under control of the appellants. The
lock and key also could not be produced at any point of
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time. First appellant was also not present at the spot.
There is also no evidence to show that the appellants
were indulged in any sort of business or had any such
criminal antecedent. On the other hand, learned
Additional Public Prosecutor, while supporting the
findings of the court below, submitted that no
interference is required. The room, from where articles
were recovered, was personally un-locked by the
appellant who not only admitted their control over the
room but also he himself and was in custody of the key.
This itself is sufficient to establish his conscious
possession.
6. Before the trial court prosecution has
examined altogether fifteen witnesses and, as it appears,
after examination of first two witnesses, Ashok Kumar
Jha, P.W.1, (informant) and Nandji Singh, P.W.2,
(member of raiding party) trial in separated case against
Sahamat Hussain proceeded after his remand on
production from another case and these two witnesses
have also been examined in this case respectively as
witnesses no. 4 and 9 and prosecution witnesses no.3
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and 4, Kaushal Mumar Singh and Md. Ekbal Ansari,
the two independent witnesses on search and seizure,
have also been examined in separated trial respectively
as prosecution witnesses no. 1 and 2. Thereafter, Lal
Babu Sah, Raj Kishore Upadhaya, Hare Ram Singh and
Sahdeo Kujur, other members of the raiding party
have been examined in both the cases as Prosecution
Witnesses no. 5 to 8 only. Thereafter, Prosecution
Witness no.1, Nandji Singh, in original case was
examined as Prosecution Witness no.9 in separated trial
and again witnesses no. 10, 11 and 15 respectively,
Maheshwar Prasad Sharma, Raj Kumar Singh, Gagan
Kumar Sudhakar, Manohar Marandi, Prabhu Sahay Eka,
and Jitendra Kumar, as members of raiding party
besides P.W.13, Manohar Marandi, is a Gazetted Officer
and two Investigating Officers, P.W.12, Gagan Kumar
Sudhakar and P.W.14, Prabhu Sahay Ekka, have been
examined in both the cases commonly. One Jham Lal
Thakur, appears examined as Prosecution Witness no.3
in separated trial only but there is no witness as
Prosecution Witness no.9 in the original trial. Perhaps
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this is a clerical error nothing more and this witness
Jham Lal Thakur since declared hostile by the
prosecution, might have been examined also for the
original case but inadvertently it does not find mention
as examined therein causing variation in numbering of
the witnesses. Consequently there appears no witness as
Prosecution Witness no.9 in original case.
7. The independent witnesses of search and
seizure, P.Ws 3 and 4 in original case as well as P.Ws 1
and 2 in separated trial, have been declared hostile
though they have simply admitted their respective
signatures on seizure list, Exhibits 4/1 and 4/2, and
P.W.3 in separated trial stated his ignorance about any
profession of the appellants.
8. Other witnesses, though members of the
raiding party as Police Personnel as well as a Gazetted
Officer, P.W.13, in both the cases, are undisputedly
consistent on the point that raid was initially conducted
in the house of the appellant where nothing could be
recovered but at the same time out of them Prosecution
witnesses Ashok Kumar Jha, (para 2 page 4 as P.W.1
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and para 4 as P.W.4 in separated trial), Nandji Singh,
(para 3 as P.W.2 and P.W.9) Raj Kishore Upadhaya,
(P.W.6 para-1)Hare Ram Singh, (P.W.7 para 2) and
Sahdeo Kujur (P.W.8 para 3) are also consistent on the
point that one of the rooms of the house of Harihar Sah
which was under lock was unlocked by appellant Akber
Hussain himself from the key kept in his pocket. All
these witnesses were not even cross-examined on the
point of this specific assertion that appellant Akber
Hussain himself opened the lock from the key taking out
of his pocket. In view of this now undisputed fact
though for the first time in the statement under Section
313 of the Code of Criminal Procedure appellant Akber
Hussain has denied without producing any other
material / witness. This much can be said that the
particular room was in full control of appellant Akber
Hussain from where undisputedly in huge quantity
recovery was made which have been proved to be ganja
as per Forensic Science report.
9. The decision of the Apex Court in a case
of Md. Aslam V. Narcotics Trial Bureau; (1996) 9
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SCC 462, relied upon by learned counsel for the
appellants on the point of conscious possession has no
application in the case in hand with respect to appellant
Akber Hussain as before the Hon’ble Court the place
wherein contraband drugs were kept was raided in
absence of the accused and there was nothing to show
that anyhow the accused was in control of the said flat
ownership of which was also lying with another person.
No doubt in absence of any independent witness the
decision is applicable in the case of appellant Sahamat
Hussain.
10. Similarly, another decision placed
reliance by the learned counsel for the appellants is of
Bombay High court in a case of Rubjane alias Smita
Sanjib Bali V. State of Maharashtra; 1996 Cr.L.J.
148, but also of no avail to Akbar Hussain wherein
name of the appellant was disclosed by a co-accused
leading to the recovery of similar articles but in absence
of the appellant there and besides some other technical
ground as of non-putting the circumstances available
against the appellant during examination under Section
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313 of the Code of Criminal Procedure etc. said
appellant was exonerated.
11. The learned counsel for the appellants
further placed reliance upon a decision of this Court in a
case of Md. Shafique V. State of Bihar (Patna); 1999
(2) East India Cr. Cases 285, wherein also the facts
and circumstances was completely different. Some
contraband articles were recovered from a close room of
a factory in absence of the appellant and there was
nothing to prove his presence or involvement at any
point of time.
12. The learned counsel for the appellants,
however, on the basis of decision of Apex Court in a
case of Krishna Mohar Singh Dugal V. State of Goa;
2000 Cr.L. Journal 18, tried to laid emphasis that
Police was well informed from before as appears from
the prosecution case and consistent evidence of the
witnesses that Ganja was kept in the house of Harihar
Sah so only on the basis of recovery of the Ganja it
cannot be said that it was done on the disclosure of the
appellants and he cannot be held liable but again
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decision of the Apex Court is not going to help this
appellant Akbar Hussain in any manner because in the
case before the Apex Court recovery of Charas was
made from a coconut tree standing in an open space so it
was held that it cannot be said that it was the accused
there who concealed the Charas there and it was found
only on the basis of disclosure statement made by the
accused. Whereas in the case in hand it is appellant
Akber Hussain who was custodian of the key of the lock
under which the room of the house of Harihar Sah was
locked and only after unlocking the same by the
appellant contraband articles were recovered so it cannot
be said that it was not under conscious possession of
appellant Akber Hussain rather he alone is found and
held to be in conscious possession of the contraband
articles.
13. True it is that such search and seizure
was made in absence of appellant Sahamat Hussain who
was not available at the place during such search and
seizure nor disclosed anything and there is no evidence
at all of any independent witness to show that this
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appellant had anything to do with the articles except
statement of the Police Officers and Police personnel
based on some confidential information received from
unknown sources. Had there been any independent
witness to support such information as regard to
involvement of appellant Sahamat Hussain or any
documentary evidence about his custody and control
over the house or particular room in question, position
could have been different. But, in absence thereof only
on such information and alleged statement of co-
appellant, before police, even though being son and
making statement leading to recovery but in absence of
father it cannot be held that against appellant Sahamat
Hussain prosecution has established its case, rather
contrary the prosecution has failed to do so.
14. On behalf of the appellants though no
argument was placed regarding Section 50 of the
N.D.P.S. Act which reads as such:
“50.Condition under which search shall
be conducted:- (1) When any Officer duly
authorized under Section 42 is about to search any
person under the provisions of Section 41, Section
42 or Section 43, he shall if such person so
requires, take such person without unnecessary
delay to the nearest Gazetted Officer of any of the
13departments mentioned in Section 42 or to the
nearest Magistrate.
(2) If such requisition is made, the officer
may detain the person until he can bring him
before the Gazetted Officer or the Magistrate
referred to in Sub-section (1).
(3) The Gazetted Officer or the Magistrate
before whom any such person is brought shall, if
he sees no reasonable ground for search, forthwith
discharge the person but otherwise shall direct that
search be made.
(4) No female shall be searched by anyone
excepting a female.
(5) When an officer duly authorized under
Section 42 has reason to believe that it is not
possible to take the person to be searched to the
nearest Gazetted Officer or Magistrate without the
possibility of the person to be searched parting
with possession of any narcotic drug or
psychotropic substance, or controlled substance or
article or document, he may, instead of taking such
person to the nearest Gazetted officer or
Magistrate, proceed to search the person as
provided under Section 100 of the Code of
Criminal Procedure, 1973.
(6) After a search is conducted under Sub-
section (5), the officer shall record the reasons for
such belief which necessitated such search and
within a seventy two hours send a copy thereof to
his immediate official superior.”
But in the list of books decision of Apex Court in
Saiyad Md. Saiyad Umar Saiyad & Ors. V. State of
Gujarat (SC); 1995 (2) East Cr. C. 21, also finds
mention but this decision is also not applicable in the
instant appeals as with the raiding party an independent
Gazetted Officer, P.W.13, Manohar Marandi, was
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present under whose presence search was conducted.
Had he being not present there and only search would
have been conducted by Police Officials and Personnel
it could have been incumbent upon them to disclose to
the right of search in presence of Gazetted officer
available to accused but in face of presence of P.W.13
the mandatory requirement is fulfilled.
15. To establish the seized articles being
Ganja there is report of Forensic Science Laboratory as
Exhibit-5 and there is no challenge to the same. Thus,
undisputedly the articles recovered are contraband
article as Ganja which was recovered in presence,
control and conscious possession of appellant Akber
Hussain and also produced before the trial court as
material Exhibits. There is no controversy on such
recovery and their respective weights. So needs to
discussion in detail.
16. In view of the facts and circumstances,
discussed above, finding no material against appellant
Sahamat Hussain @ Sohamat Mian in Cr. Appeal no.
923 of 2007, his conviction and sentence is not
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sustainable. Accordingly, set aside and the appeal is
allowed. He is at once ordered to be released if not
required in any other case. But, simultaneously there is
sufficient evidence against his son, appellant Akber
Hussain of Cr.Appeal no. 1009 of 2007 and findings of
the court below to the extent of his conviction and
sentence needs no interference. Accordingly, said
appeal is hereby dismissed.
(Akhilesh Chandra, J.)
Shyam Kishore Sharma, J.
(Shyam Kishore Sharma, J.)
Patna High Court,
The 08th October, 2010.
AAhmad/(NAFR).