CRIMINAL APPEAL No.576 OF 2009 (DB)
Against the judgment of conviction and order of sentence dated 2nd May, 2009 and 5th
May, 2009 respectively passed in Jandaha P.S. Case No. 112 of 2006 by Sri Prem
Chandra Gupta, Ist Additional Sessions Judge, Vaishali at Hajipur.
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JALE ALAM SON OF ALIYAS MIAN, R/O VILLAGE- RAJAUTA, P.S.- RAXAUL,
DISTRICT- MOTIHARI ...........................................APPELLANT
Versus
STATE OF BIHAR ...........................................RESPONDENT
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For the Appellant :- Mr. Rakesh Kumar Soni, Advocate
For the State :- Mr. Ashwini Kumar Sinha, APP
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PRESENT
THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA
THE HON'BLE MR. JUSTICE GOPAL PRASAD
S. K. Sharma & The sole appellant Jale Alam has preferred this appeal
Gopal Prasad, JJ.
against the judgment of conviction and order of sentence dated
2.5.1009 and 5.5.2009 respectively passed in Jandaha P. S. Case
No. 112 of 2006 by the learned Ist Additional Sessions Judge,
Vaishali at Hajipur whereby the appellant has been found guilty
under Sections 20 (b) (ii) (c) & 23 ( C ) of the Narcotics Drugs and
Psychotropic Substance Act (hereinafter referred to as the Act) and
he has been sentenced under Sections 20 (b) (ii) (c) of the Act to
undergo rigorous imprisonment for 12 years and a fine of Rs.
1,00,000/- and in default of payment of fine further he has to
undergo rigorous imprisonment of one year. No separate sentence
has been awarded under Section 23 ( C) of the Act.
2. The brief facts, necessary for the disposal of this
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appeal is relating to an occurrence of the afternoon of 3rd
November, 2006. On that date at about 1.30 P.M. the informant and
other police personnel spotted a jeep bearing No. BHD 3437 going
towards Samastipur. On suspicion it was chased. The jeep dashed
with the stairs of the godown of one Sogarth Sah of village Arania
and thereafter, the accused was caught. The accused has
disclosed the name of others also who were succeeded in escaping
as Guddu Mian and Munna Pandey. Two quintals of Ganja was
recovered from the back seat of the jeep. The case was registered
as Jandaha P.S. Case No. 112 of 2006 on 3.11.2006 under
Sections 20, 22 and 23 of the Act. After investigation Chargesheet
was submitted and cognizance was taken. The charges were
framed and explained to the appellant to which he pleaded not
guilty and claimed to be tried.
3. In support of the charges the prosecution has
examined 12 witnesses. They were Ram Pravesh Rai the informant
(PW 1), Biushundeo Singh (PW 2), Nitesh Chaudhary (PW 3),
Rameshwar Sah (PW 4), Birju Chaudhary (PW 5), Jogendra Singh
(PW 6), Gayasuddin (PW 7), Md. Ekram (PW 8), Bipin Kumar Singh
(PW 9), Dafadar Tripurari Chaudhary (PW 10), Dafadar Gopal
Singh (PW 11) and the Investigating officer Birendra Yadav (PW
12). Besides the oral evidence the prosecution has exhibited
signature of informant Ram Pravesh Rai on fardbeyan (Ext. 1),
signatures of Nitesh Kumar Chaudhary and Rameshwar Sah on
seizure lsit (Exts. 2 & 2/1), fardbeyan (Ext.3), seizure list (Ext. 3/1)
and FIR (Ext. 3/2). At the trial stage the report of Forensic Science
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Laboratory, Patna regarding chemical examination of the seized
article was not available. The same has been received at the
appellate stage where the same was exhibited as Exhibit-4.
4. The trial Court after considering the entire evidences
available and other materials available on record, found the
appellant guilty and sentenced his, as stated above.
5. This Court has to see whether the prosecution was
able to prove the charge against the appellant beyond the shadow
of all reasonable doubts or not.
6. The fardbeyan of the informant was recorded on
2.30.P.M. on 3.11.2006 at village Arania in which he stated that he
had come for repairing of the puncture of stepny of the jeep along
with Dafadar Gopal Singh (PW 11) and Dafadar Tripurari
Chaudhary (PW 10). At about 1.30 P.M. the informant saw a jeep
escaping towards east which was covered from behind. On
suspicion it was chased. The driver of the jeep tried to escape along
with the jeep but he could not succeed in escaping and the jeep
dashed with the stairs of the Godown of Sogarath Sah as a result
thereof the jeep had to stop. The driver and two others started
escaping but one of them, the appellant, was apprehended. He told
the name of two others who succeeded in escaping. The persons
who escaped were said to be Guddu Mian and Munna Pandey.
The apprehended accused disclosed that the jeep was carrying
Ganja containing in 32 packets. Accused further stated that the
Ganja was being carried towards Samastipur. In presence of Nitesh
Kumar Chaudhary (PW 3) and Rameshwar Sah (PW 4) the packets
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were seized.
7. In the present case PW 2, seizure list witness, has
not supported the prosecution case and he has been declared
hostile.
8. PW 3 is Nitesh Chaudahry who is the seizure list
witness and identified his signature but in cross-examination he has
stated that the signature was taken on plain paper. PW 4 has
identified his signature but he has also stated that nothing was
seized in his presence. PWs 5, 6, 7, 8 and 9 were declared hostile
because they have not supported any part of the charge.
9. PW 10 is the FIR witness and according to the
fardbeyan, he has chased the jeep which was allegedly carrying
Ganja. He has stated that on 3.11.2006 at about 1.30 P.M. he was
going by police jeep for repairing Puncture of tyre. One jeep bearing
registration no. BHD 3437 tried to escape at the sight of the police
jeep. Therefore, Jeep No. BHD 3437 was chased but that jeep
dashed with the stairs of Sogarath Sah. So it had to stop. Three
persons tried to escape out of whom one was caught and that
person was the appellant. He told that the persons who succeeded
in escaping are Guddu Mian and Munna Pandey. Two quintals of
Ganja containing in 32 packets were seized and seizure list was
prepared. In cross-examination he has stated that the seized
packets were separately weighed but the seizure list does not
mention the quantity of separate packets.
10. PW 11 is the Investigating Officer. This witness has
supported the version of the informant and other seizure witnesses.
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This witness has supported the factum of seizure of Ganja.
11. Learned counsel for the appellant has argued that
the seizure list witnesses have not supported the prosecution case
rather they have stated that nothing was seized in their presence so
on this score alone the seizure of Ganja has not been proved. On
the other hand the learned counsel for the State submitted that the
seizure list witnesses have admitted that their signatures were
present on the seizure list and once they admit their signatures
then the inference is that it was a valid seizure in which they have
participated and they have put their signatures. Learned counsel for
the State placed reliance on a decision reported in (2006) 2 SCC
(Cri) 444 (Surender Singh Versus State of Haryana).
12. No doubt seizure list witnesses have stated that the
seizure was not in their presence but their signatures are there and
they have admitted that the seizure list contains their signature. So
the seizure in their presence has been established beyond all
reasonable doubts.
13. Learned counsel for the appellant submitted that PW
1 in paragraph 5 has stated that out of 32 seized packets only one
was opened by the Officer In Charge. It has been stated by PW 1 in
paragraph 5 of his evidence that „‟DAROGAJEE GANJA KA
KEWAL EK PACKET KHOLA THA” (Officer Incharge has opened
only one packet of Ganja)”. On this basis it has been argued that
out of 32 alleged packets the evidence has come that only one
packet was containing Ganja so this is incorrect to say that the
accused namely, the appellant was carrying Ganja of commercial
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quantity which must be of 20 Kg. or more. Though the charge
against the accused was of carrying two quintals of Ganja but in
view of the evidence of PW 1, at best it can be presumed that the
Ganja contained in only one packet which is not the commercial
quantity.
14. Learned counsel for the State has fairly submitted
that only evidence available on the record is that one packet of
Ganja was seized and he submits that in view of the specific
evidence it cannot be held that all the packets were containing
Ganja.
15. Though at the trial stage the report of the Forensic
Science Laboratory was not on the record but the same was made
available at the appellate stage and the same was marked as
Exhibit-4 by way of additional evidence. According to the report, the
sample was of dry-brown flowering and fruiting vegetable
substances contained in the paper envelope described above was
found to be Ganja containing Tetra Hydro Cannabinol (T.H.C.) as
chief intoxicating ingredient.
16. We have heard submissions of the learned counsel
for the appellant and the learned counsel for the State. No doubt
the prosecution has been able to prove that the seizure of Ganja
was made but evidence is only to the extent that only one packet
out of 32 packets was opened and there is no evidence at all that
sample of all the packets were taken rather from the report of the
Forensic Science Laboratory it appears that the Forensic Science
Laboratory has received “a sealed paper envelope”. The report of
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the Forensic Science Laboratory shows that the sample is
contained in only one envelope. It is also not the evidence that all
the 32 packets were opened and those were mixed-up and the
sample sent was mixture of all 32 seized packets. Not even one
witness has stated that seized 32 packets were opened and their
contents were mixed up and a sample was taken. Rather to the
contrary the evidence is only to the extent that only one packet was
opened. The oral evidence of the witnesses finds support from the
report of the Forensic Science Laboratory which also states that it
has received only one envelope. Therefore, the prosecution has not
been able to prove that the sent materials contained the mixed
sample of all the 32 packets rather the evidence is that the sent
sample was of only one packet. The punishment under the Act
varies according to the quantity. The prosecution has not taken care
to see that samples of all the packets are taken so that it could
prove its case and charge that the seizure was of more than 20 kg.
of Ganja and sample was taken from the heterogeneous mixture of
the packets which was seized.
17. In view of the lack of application of the proper
procedure regarding sampling, it cannot be said that the seizure
made from the appellant, which was chemically examined, was of
commercial quantity. Though the prosecution has been able to
prove the charge that on the date and time of occurrence the
appellant was in possession of Ganaj but it has not been proved
that the same was of commercial quantity. If all the packets of
Ganja were of identical weight and two quintals were divided by 32
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packets then also it comes up to 7 Kg per packet which is less than
the commercial quantity.
18. Considering the discussions made above, benefit of
doubt regarding quantum of quantity goes in favour of the appellant
to the extent that on the date and time of occurrence the seizure of
Ganja was made from his possession but it was not of commercial
quantity. Hence we are of the opinion that the prosecution has been
able to prove the charge that the appellant was in possession of
Ganja on the date and time of occurrence and the charge regarding
dealing of commercial quantity of Ganja was not proved. In that
view of the matter, the sentence awarded to the appellant is
modified and it is accordingly modified to Section 20 (b) (ii) (b) and
23 (b) of the Act in place of under Section 20 (b) (ii) (c) & 23 ( c )
of the Act. With regard to fine awarded to the appellant it is modified
to the extent that he will have to deposit Rs. 25,000/- by way of fine
and in default of payment of fine he will have to undergo rigorous
imprisonment for six months.
19. With the aforesaid modification in the sentence, this
appeal is dismissed.
(Shyam Kishore Sharma, J.)
(Gopal Prasad, J.)
Patna High Court, Patna
Dated 13th April, 2010
Avin/N.A.F.R.