Against the judgment and order of conviction dated
7.12.2006 and further against the sentence passed on 12.12.2006 by Sri R.K.Singh,
Addl Sessions Judge, P.O., FTC No. II, Motihari in Excise case no. 4 of 2002,
Sessions Trial Case No. 284 of 2004.
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CRIMINAL APPEAL (S.J.) NO.1043 OF 2006
WITH
CRIMINAL APPEAL (S.J.) NO.06 OF 2007
WITH
CRIMINAL APPEAL (S.J.) NO.07 OF 2007
WITH
CRIMINAL APPEAL (S.J.) NO.133 OF 2007
WITH
CRIMINAL APPEAL (S.J.) NO.238 OF 2007
—–
1.Subhash prasad——————– ( Cr.A.No.1043/06).
2.Bachcha Prasad &
3.Girdhari Prasad —————— ( Cr.A.No.06/07).
4.Bablu Kumar —————— ( Cr.A.No.07/07
5.Sukhari Prasad —————— ( Cr.A.No.133/07).
6.Bhagmati Devi —————— ( Cr.A.No.238/07)Appellants.
Versus
STATE OF BIHAR—————————-Respondent.
For the appellants: Mr. Krishna Kant Singh
For the State : Additional Public Prosecutor.
PRESENT
THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH
S. P. Singh, J. The aforesaid five appeals are being taken up together for hearing as
they are analogous and arise out of the same Judgment. All these five appeals have
been preferred against the judgment and order dated 7.12.2006, whereby the
appellants therein have been convicted under sections 20(b)(ii)(c) and 23 (c) of the
N.D.P.S. Act( in short the Act) and sentenced to undergo RI for ten years
imprisonment and to pay a fine of Rs one lacs under each of the two counts, in default
of payment of fine to further undergo RI for two years. However, both sentences were
ordered to run concurrently.
2. The prosecution case as recorded on self statement of the informant,
namely, Laldhari Prasad, Inspector cum officer in charge of Raxaul Police Station
on 12.1.2002 at about 7.05 pm in short is as follows:-
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3. The informant got secret information that some smugglers have
assembled in Mohan nagar tola of Raxaul in the house of accused Viswanath Prasad
and Sukhari Prasad and are preparing to remove the smuggled goods concealed there.
After making due station diary entry no.300, dated 12.1.2002, a raiding party was
constituted under leadership of Sushil Kumar, the SDPO, Raxaul comprising of the
informant, Ranjan Kumar, the IO and other police officials. Raid was conducted on
the two houses on the same day between 8 to 8.30 pm in presence of two
independent witnesses, namely, Sambhu Prasad ( pw 2) and Lal deo Prasad (pw 3). In
course of raid, 11 kilograms of Charas and 22 packets measuring about ½ kilogram
each, and one small piece of Charas measuring about 10 grams wrapped in a paper
and knee caps kept in a white bag also concealed under the Bed of Vishwanath
Prasad were recovered and seizure list was prepared. The persons arrested from the
said room disclosed their names as Bhagmati Devi, wife of aforesaid Vishwanath
Prasad, the owner of the house, the appellant of Cr.Appeal no. 238 of 2007, Baccha
Prasad and Girdhari Prasad, appellants of Cr appeal no. 06 of 2007, both residents of
village Keshari, Bablu Kumar, appellant of Cr.Appeal No.1043 of 2006, also resident
of village Keshari. Co-accused Vishwanath Prasad, however managed to escape and
another accused Umesh Kushwaha escaped during the trial of the case.
4. From the house of co accused Sukhari Prasad, appellant of Cr.appeal
no. 133 of 2007, five kilograms of Charas in 10 packets measuring about ½ kilograms
each was recovered, concealed in a bag kept under a cot from east facing room. The
owner of the hosue Sukhari Prasad, and co accused Badri Sah were arrested from the
spot. However, the latter absconded during trial.
5. On the basis of self statement of co-accused Raxaul ps case no. 7 of
2002, dated 12.12.2002, was registered. The case was investigated by Sri Ranjan
Kumar, SI of police and after investigation, charge sheet was submitted against all the
accused /appellants mentioned above.
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6. Leased Special Judge, Motihari took cognizance of offence and the
case was subsequently transferred to the court of Addl. Sessions Judge, Motihari for
trial. Charges were framed under sections 20B (ii) (c) and 2(c) and 23 of the Act.
7. The prosecution examined altogether 17 witnesses who are as
follows:-
(PW 1) Kirishna Gopal Dwivedi, JM, Ist Class, Motihari, (PW 2) Shambhu
Prasad, (PW 3) Dr Laldeo Prasad, (PW 4) Ram Ekwal Singh, Civil Zamadar of
Raxaul PS, (PW 5) Ram Prasad Giri, orderly peon of Dy SP. (PW 6) Ashok Kumar
Singh, Magistrate Constable, (PW 7) Md. Muslim, Driver constable, (PW 8) Prem
Nath Ram, constable, (PW 9) Ram Krishna Singh, ASI of Raxaul PS, (PW 10)
Shushil Kumar SDPO, (PW 11) Rajiv Singh, constable, (PW 12) Kailashpati Prasad,
SI of Raxaul PS and in charge of malkhana of said PS, (PW 13) Laldhari Prasad,
Inspector cum O/C of Raxaul PS (informant), (PW 14) Saryu Mahto, constable, (PW
15) Bundi Lal Manjhi, junior SI of Raxaul PS, (PW 16) Md. Aslam Khan, Body
Guard of SDPO, Raxaul and (PW 17) Ranjan Kumar, SI ( IO). The defence
examined two witnesses, namely, Narad Sah and Virendra Sah as DWs 1 and 2
respectively.
8. Out of 17 aforesaid persons, PW. 1 is K.G. Dwivedi, the then
Judicial Magistrate, Ist class, Motihari, who granted permission for chemical
examination of the seized contraband. He stated that the seized contraband was
produced before him on 21.3.2002. He also stated that sample of Charas were drawn
from different packets and were sealed in his presence for chemical examination.
9. PW 2 (Sambhu Prasad) and PW 3 (Dr Laldeo Prasad) did not
support the seizure and were declared hostile. PW 12 (K.P. Prasad) is the sub
inspector of Raxaul police station. The seized motorcycle was kept in aforesaid
Police Station . PW 13 is Inspector cum officer-in-charge of Raxaul police station and
informant of the case. PWs 14 and 15 are formal witnesses and PW 17 is the
Investigating officer of the case.
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10. PW 13, the informant supported his prosecution case. He
stated that on getting information that smugglers have assembled with some goods in
the house of Vishwanath Prasad and Sukhari Prasad, made a corresponding entry in
station diary and informed the S.D.P.O., namely, Sushil Kumar, PW 10 and on his
order a raiding party of PWs 4, 7,9,12 and 16 under the leadership of PW 10 was
constituted. Thereafter in presence of two independent witnesses, they raided the
aforesaid two houses and seized the aforementioned contraband materials. Six
persons mentioned above present in the two houses were arrested. However,
Vishwanath Prasad, owner of the one of the two houses managed to escape. He stated
that he did not inform the officers of Excise and Customs Department regarding
recovery. He also stated that signature of witnesses and accused persons were not
taken on materials exhibits.
11. PW 10, the SDPO corroborated the evidence of the informant. He
stated that on receipt of information, he came to the police station and constituted a
raiding party and proceeded towards the house of Vishwanath Prasad and Sukhari
Prasad in Mohalla Nega Road. He corroborated the factum of seizure of charas. PWs
4 and 9, Civil Jamadar and ASI also stated that they too went in raid and they also
supported the version of PW 13, the informant. PW 5 stated that he is orderly peon of
PW 10 and was also a member of raiding party which conducted raid.
12. PW 17, IO of the case stated in para 20 of his evidence that 1st list
of sample sent to FSL was returned without examination, as signature on the seal was
not legible and designation of forwarding officer was not mentioned. He stated that
samples were again resent to FSL for chemical examination. Subsequently a report
dated 14.11.2002 was received from FSL and has been marked as exhibit no.6. The
report shows the presence of Greenish brown solid substance, namely, Tetra Hydro
connbinal Tat.C which constituted an important ingredient of Charas.
13. From the aforesaid evidence of witnesses it will appear that PWs
4,6,8,9,10,11,12,13,15,16 & 17have corroborated statement of each other
regarding raid of houses of Vishwanath Prasad and Sukhari Prasad and recovery
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of 11 kilograms and 5 kilograms of Charas from their houses respectively. The
defence examined two witnesses on behalf of accused Babloo Kumar, appellant in
Cr Appeal No. 133 of 2007. These DWs are Narad Sah and Birendra Prasad. DW
1 stated that accused Babloo kumar had come to his shop at about 4.30 pm for
realizing his dues of Rs 4,500/- and he further deposed that Babloo Kumar was
arrested while he was moving in the market after he departed from the shop. DW
2 stated that he met appellant Babloo Kumar at the shop of DW 1.
14. After considering the evidence on record, the learned trial court
found the appellants guilty under sections 20(b) (ii) and 23 of the Act and sentenced
all of them to ten years imprisonment and payment of fine of rupees one lacs each,
under both the counts. Learned counsel for the appellants raised the following
points:-
15. Learned counsel for the appellants stated that the charges have not
been duly proved against them. The non compliance of mandatory provisions of Act
including section 42(2), 53, 55 and 57 of the Act has rendered the prosecution case
unsustainable in law. He also submitted that the informant did not have power of
search and seizure and the Sub Inspector who investigated the case was not
competent to do so.
16. It was submitted on behalf of accused Bachcha Prasad, appellant
of Cr appeal no. 7 of 2007 that he had come to house of his brother-in-law, namely,
Viswanath Prasad on a courtesy visit along with his friend Giridhari Prasad, (co-
appellant) and Babloo Kumar, appellant of Cr appeal no. 133 of . It was submitted
on behalf of Subhash Prasad appellant of Cr Appeal No. 6 of 2007 that he is
neighbour of Vishwanath Prasad and had come to his house to ask for some flour and
soon thereafter there was a raid. It is submitted on behalf of all these appellants that
they have no concern with the alleged recovery of Charas from the house of
Vishwanath Prasad as there is no evidence on record to show that they ever indulged
in either purchase or sale of Charas or they brought the same to the house of
Vishwanath Prasad. It was submitted on behalf of the appellant Bhagmati Devi, wife
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of Vishwanath Prasad that her presence in the house was very much natural, being
house wife. It is also submitted on her behalf that there is no evidence to the effect
that she indulged in purchase and sale of Charas with her husband or she had
knowledge that same had been concealed under the Cot.
17. Learned Additional Public Prosecutor appearing for the State of Bihar
stated that contraband material had been recovered from the house of Vishwanath
Prasad and Sukhai Prasad. The presence of appellants in the house at relevant period
also shows their involvement. FSL report (exhibit 6) would also show that materials
seized is very much Charas. He stated that the informant was empowered under
section 42 of the Act to conduct search and seizure and to institute a case.
18. The Act provides stringent measures for control and regulation of
operation relating to drugs and psychotropic substances, obviously with a view to
check trafficking in drug which is a menace to the Society. At the same time
legislature has taken care by inserting certain provisions in the Act to ensure that the
innocent is not implicated or booked under the Act. It is well settled that stringent
punishment requires stricter adherence to the procedures provided in the Act. In view
of the aforesaid object of the Act, this Court now proceeds to examine the points
raised by the learned counsel for the parties.
19. I first of all take up the appeal of Subhash Prasad, Bachcha Prasad,
Girdhari Prasad, Babloo Kumar and Bhagmati Devi as they have a common defence.
The aforesaid four persons are admittedly not the owners of the house which were
raided. Subhash Prasad happens to be a neighbour. Bachcha Prasad happens to be
brother in law of Vishwanath Prasad, the owner of house. Giridhari Prasad and
Babloo Kumar both are friends of Bachcha Prasad, all being residents of village
Kesharia. The prosecution has not brought any evidence on record to show that they
indulged in trade of Ganja or narcotic drugs. There is no evidence on record that the
Ganja which was recovered from the house of Vishwanath Prasad and Sukhari Prasad
were brought by them. There is no evidence that the aforesaid Ganja was seized from
their person or from their physical or conscious possession. In absence of any
7
material to connect them with recovery of alleged Ganja from house of two different
persons, namely, Vishwanath Prasad and Sukhari Prasad it would not be safe to
uphold the conviction.
20. Now I taken up the case of Bhagmati Devi, wife of Vishwanath
Prasad from whose house 10 grams of Ganja were recovered concealed under her
bed. The presence of appellant in the house is very natural and obvious as she
happens to be the wife of Vishwanath Prasad. Generally, husband is manager of the
family and wife plays a supplementary role. There is no evidence on record to show
that she was in possession of Ganja seized from room of Vishwanath Prasad. No
overt act has been alleged against her. There is no investigation to the effect that she
had played any role in concealing the Ganja in the house. In the aforesaid
circumstances, the prosecution has failed to establish the charge under the NDPS Act.
21. Now remains the case of Sukhari Prasad, who in custody since the
date of raid i.e. on 12.1.2002. Learned counsel appearing on behalf of the appellants
submits that raid and search were conducted by Inspector cum officer- in -charge of
Raxaul Police Station at about 7.05 PM under the leadership of Sushil Kuamr, SDPO,
Raxaul. The raid was conducted after making due entry in the station diary as per
section 42(1) of the Act. If an empowered officer makes raid after sunset without
warrant or authorization, he is bound to record the reasons for conducting such raid.
Furthermore there was non compliance of section 42(2) of the Act, which mandates
that such report should be sent to superior official within 72 hours.
22. The empowered officer can conduct raid even after sun set without
warrant or due authorization if he believes that the same would allow time and
opportunity to the accused to conceal the drugs. However, he must record in writing
the ground for such apprehension and belief. There is no evidence on record to show
that there was compliance of aforesaid provisions. The aforesaid deficiency in the
prosecution case not only makes the prosecution against Sukhari Prasad faulty but
renders the same unsustainable against other appellants.
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The Apex court in the case of Beckodan Abdul Rahiman Vs the State of
Kerala, reported in 2002 (3) PLJR, page 216 has held that section 42(2) of the Act is
mandatory and non compliance of the same would affect the prosecution case. The
relevant extract of paras 5 and 8 of the judgment is produced herein below:-
“After referring to host of judgments, the
Constitution bench of the court held that the provisions of
sections 42 and 50 are mandatory and their non compliance
would render the investigation illegal. It was reiterated that
severer the punishment, greater the care to be taken to see that all
the safeguards provided in the statute are scrupulously
followed.”
“We are of the firm opinion that the provisions
of sub section (2) of section 42 and the mandate of section 50
were not complied with by the prosecution which rendered the
case as not established. In view of the violation of the mandatory
provisions of the Act, the appellant was entitled to be acquitted.
Both the trial court as well as the High Court have failed to
consider this aspect of the matter which warrants the setting
aside of the impugned judgment.”
23. Furthermore, the articles were seized on 12.1.2002 and sent for
chemical examination after 2 ½ months. The seizure list witnesses did not support
prosecution case and had turned hostile. The prosecution has not brought any
evidence on record to show, as to where the seized contraband was kept for the
aforesaid two months.
24. Having considered the facts and circumstances of the case and in
view of procedural lapse, this Court finds that prosecution has failed to prove
charges against appellants. As a result, judgment and conviction dated 12.12.2006,
passed by Sri R.K.Singh, Addl Sessions Judge, FTC 2, East Champaran, Motihari in
Raxaul Police Station case no. 7 of 2002, Excise case No.4/2002 Sessions Trial No.
284 of 2004 is set aside and they are discharged of their bail bonds. The appellants
are directed toe released forthwith, if they are not wanted in any other case.
(Samarendra Pratap Singh,J)
Patna High Court,
Dated, the 18th Nov, 2008,
NAFR/Anil/Shashi.