CRIMINAL APPEAL (U/S) NO. 670 OF 2007 (SJ)
(Against Judgment and Order dated 22/24th May, 2007,
passed by learned Additional Sessions Judge, Fast
Track Courts-III, Vaishali, at Hajipur in Jandaha P. S.
Case No. 35 of 2002)
NARESH SINGH (Appellant)
VERSUS
THE STATE OF BIHAR (Respondents)
............
For the Appellant: Shri Sumant Singh, Adv.
For the State of Bihar: Shri Satya Narain Prasad, Adv.
PRESENT
HON’BLE MR. JUSTICE SAMRENDRA PRATAP SINGH
S. P. Singh, J. This appeal is directed against Judgment and Order dated
22/24th May, 2007, passed by learned Additional Sessions
Judge, Fast Track Courts-III, Vaishali, at Hajipur in Jandaha P.
S. Case No. 35 of 2002, whereby, the appellant has been
convicted under Section 20(b)(i) of N.D.P.S. Act and sentenced
to undergo RI for 10 years and also to pay a fine of Rs. 1 lac,
and in default to undergo RI for one year.
The informant Baneshwar Tiwary, S.I., Jandaha (not
examined) had gone to village Arniyan to help S.D.P.O., Mahua
in supervision of Mahua P. S. Case No. 31 of 2002. He was
accompanied with constable Bindu Ram (P.W. 3), Tapeshwar
Rai (not examined), Dafadar Gopal Singh (not examined) and
Driver of the vehicle Shyam Bihari Pandey, P.W. 5. On seeing
the police party, some persons started fleeing from the door of
the appellant, Naresh Singh. He learnt the name of the accused
persons, as Naresh Singh, Mithhu Singh, Umesh Choudhary and
Sita Ram Mahto. The informant and his men chased them
unsuccessfully.
Informant in presence of two independent witnesses,
namely, Ram Naresh Rai (P.W. 1) and Lakhan Singh (P.W. 2)
searched the house of Naresh Singh and seized five packets of
Ganja from the Cot in the house of Naresh Singh, whereas, 2
packets of Ganja were recovered from the Motorcycle, bearing
Registration No. BR-24-A-6478, in front of the door of Naresh
Singh. The villagers stated that Mithhu Singh indulged in illegal
business of Ganja.
The informant recorded his own self statement giving rise
to Jandaha P. S. Case No. 35 of 2002 dated 11.05.2002 against
accused persons, under Section 20(b)(i) and 22 of N.D.P.S. Act,
the FIR has been marked as Ext.-2. The case was investigated
by Sub Inspector, Aditya Kumar, P.W. 4, who took over the
investigation and submitted chargesheet under Section 20(b)(i)
and 22 of N.D.P.S. Act. Cognizance of offence was also taken
under the aforesaid Section and the case was committed to the
Court of Sessions. Thereafter, finally the case came to the file of
present Trial Court for disposal.
The Prosecution, in all, examined 5 witnesses. P.W. 1
(Ram Naresh Rai) P.W. 2 (Lakhan Singh) are seizure witnesses
and have turned hostile. P.W. 3 (Bindu Ram) is one of the
constables of raiding party. P.W. 4 (Aditya Kumar) is the
Investigating Officer of the case, P.W. 5 (Shyam Bihari Pandey)
is the Driver of the Jeep. The defence did not examine any
witness.
The accusations were explained to the sole appellant,
facing trial under Section 313 of the Cr.P.C.
On consideration of materials on record, the learned Trial
Court convicted the appellant under Section 20(b)(i) of N.D.P.S.
Act and sentenced as noted in paragraph 1 of the Judgment.
Learned counsel for the appellant submits that
prosecution did not examine materials witnesses, including
Baneshwar Tiwary, the informant of the case and Tapeshwar
Rai, a member of raiding party and the Sub-divisional Police
Officer, Mahua. He further contends that the prosecution has not
conclusively proved that the alleged house / palani and the said
Motorcycle bearing Registration No. BR-24-A-6478, from which 5
and 2 packets of Ganja weighing 45 Kg. in total were recovered,
belongs to him. As such the conviction is bad.
In support of his submission, the learned counsel for the
appellant relies upon the following cases:
(i) State of H.P. Versus Bootinath (1993 Supreme Court)
(ii) Anthony Sauri Pillai Versus State of Maharashtra (1993
Criminal Law Journal 1502)
(iii) Md. Alam Khan Versus Narcotics Control Bureau (1996
Supreme Court 3033)
He submits that the seized Ganja were not produced nor
exhibited before the Magistrate nor there was any explanation for
the same. In support of his contention, he relies upon the case of
Jitendra & Anr. Versus State of M.P., reported in 2003, Criminal
Law Journal, page 4983. He stated that non-remittance of Ganja
for chemical examination itself cuts at the root of prosecution
case and in support of his submissions, relied upon the case of
(i) Pilli Dilli Dora Versus State of Orissa, reported in 1995
Criminal Law Journal 175 and case of Bachu Singh Vrs. State of
Bihar 2001 Criminal Law Journal NOC 14: 2001 (2) BLJR, page
975. He submits that mere recovery would not be sufficient to
bring home the charge. Apart from that, the two seizure
witnesses, namely, Ram Naresh Rai (P.W. 1) and Lakhan Singh
(P.W. 2), have not supported the factum of seizure and have
been declared hostile.
On the other hand, learned Counsel for the State submits
that the witnesses, namely, Bindu Ram (P.W. 3) and Shyam
Bihari Pandey (P.W. 5) stated that the Ganja in question were
recovered from a Cot of the house of Naresh Singh as well as
from Motorcycle bearing Registration No. BR-24-A-6478,
standing at the door.
For bringing home the charge U/S 20 & 22 of NDPS Act, it
would be necessary to prove that the place from which Ganga
was recovered belonged to appellant. Learned Counsel
submitted that no independent witness was examined in support
of proof that the house in question or the Motorcycle, belonged
to the appellant. He submitted that mere occupation of the house
in itself would not be sufficient to establish that the same
belonged to him. It was, however, submitted that there is no
material to establish that the Ganja in question was brought by
this appellant or he was in exclusive possession of the same.
P.W. 3 (Bindu Ram) in his deposition stated that when he
and others reached the house of Naresh Singh at Village –
Arniyan, he found the accused persons fleeing away. P.W. 5,
Shyam Bihari Pandey in para 3 of his deposition stated that the
packets were recovered from the house of Naresh Singh. P.W. 4
(Aditya Kumar), the Investigating Officer of the case, stated that
he inspected the house of Naresh Singh, situated in Dakshin
Tola from where 5 packets of Ganja was recovered lying on
Chauki in the aforesaid premises and 2 packets of Ganja were
said to be recovered from the Motorcycle bearing Registration
No. BR-24-A-6478, standing outside the house. He further stated
that there was none-else in the house nor could he see any other
things or materials therein. He admitted that he did not examine
any local witness to ascertain whether the house or Palani
belonged to Naresh Singh.
It is true that mere occupation of the premises can not be
a conclusive proof in itself that the same belongs to the person
occupying it. In the instant case, P.W. 3 (Bindu Ram) and P.W. 5
(Shyam Bihari Pandey) as well as Investigating Officer stated
that they recovered the alleged Ganja from the house of Naresh
Singh. In urban areas, people may not be very conversant with
each other. On the other hand inhabitants of rural areas form a
close knit and are more conversant with each other being
localized and population being thin. There are more opportunities
of interacting with each other as they have common place of
meeting, entertainment or sports. The police officials of area
know the inhabitants more closely than in urban areas. Here
each of three police officials were sure that the Palani / house
belonged to appellant and there is no circumstance to doubt their
assertion. Thus, I do not find substance in submission of the
learned counsel for the appellant that prosecution has not been
able to establish that the house belonged to the petitioner.
The ratio decided in the case of Md. Alam Khan Versus
Narcotics Control Bureau, reported in 1996 Supreme Court
3033, has no bearing or application in the facts of this case. In
the aforesaid case, the police raided the house of co-accused,
who informed that some contrabands have also been concealed
in a flat in upper floor, of one Md. Alam Khan appellant. The
Police gathered further information that the appellant has a flat in
one more locality. On the basis of the aforesaid information, the
police raided the aforesaid premises and seized some
contraband materials and attributed the same to appellant Md.
Alam Khan. The appellant asserted that aforesaid flat does not
belong to him and he has been falsely implicated by co-accused
and prosecutrix. In the aforesaid circumstances the Apex Court
ruled that there is no sufficient evidence on record to show that
the flat from which drugs have been seized belonged to him. The
circumstances, the place and facts of the instant case are
different. Here the police, P.W. 3, P.W. 5 and the IO asserted
that they are in knowhow that the house in question belonged to
Naresh Singh, being police personnel of local thana having
territorial jurisdiction over the same.
Nontheless, the prosecution has not brought any material
on record to show that the motorcycle in question belonged to
the appellant. No witness deposed to the aforesaid affect.
Furthermore, the prosecution did not verify in any manner from
transport or motor vehicle office that the alleged motorcycle
belonged to appellant. Merely because a contraband is seized
from a motorcycle, which was parked outside the house, it can
not be said conclusively that the same belonged to the appellant.
Further more there is no evidence that the petitioner had kept
Ganja in the Motorcycle. Thus the Court holds that the
prosecution has failed to prove the charge that the seized Ganja
on the Motorcycle bearing Registration No. BR-24-A-6478, was
either kept or belonged to the appellant beyond all reasonable
doubt.
1. The next submission of appellant is that non chemical
examination of recovered Ganja caused prejudice to the
defence as in its absence it can not be said with certainty
that the seized contraband is Ganja. He relied upon the
decision rendered in case of Pilli Dilli Dora Supra as well
as Bachhu Singh Supra. In case of Bachhu Singh,
reported in 2001, Criminal Law Journal NOC 114: 2001(2)
BLJR 975, the alleged contrabands seized from the
premises of accused were not sent for chemical
examination. In aforesaid circumstances Jharkhand High
Court held that non-examination of seized material is fatal.
It was further observed that in absence of chemical
examination and merely on the basis of earlier statement
of one of the witnesses, it can not be held that the
substance that was seized from the appellant was Ganja.
2. In case of Jitendra & Anr. Vrs. State of M.P., reported in
2003, Criminal Law Journal page 4983, noticed above,
seizure witnesses too did not support the prosecution
case. The seized contraband was also not produced
before the trial court. The FSL report was not received in
the Court and the informant was also not examined. All
these circumstances led the Hon’ble Supreme Court to
hold that the prosecution has not succeeded in proving
the prosecution case beyond all reasonable doubt and
acquitted the appellant.
3. The aforesaid ratio would fully apply in the instant case as
the pointes involved are similar. Non examination of
chemical seized in absence of other corroborative
evidence, does weaken the prosecution case. The seized
material was neither produced before the Court nor the
same was exhibited, neither there is any explanation for
the same. Mere oral evidence or seizure list is not
sufficient in absence of corroborative evidence to prove
the charge. P.W. 1 and P.W. 2, who are the seizure
witnesses have not supported the factum of the seizure of
the alleged Ganja from the premises of the appellant. In
absence of such corroboration, the seizure list becomes a
mere document of the prosecution, which remains
unproved substantially.
Furthermore, the Ganja was not recovered from the
personal possession of the accused appellant. Ganja was
neither produced in the Court nor any report of the
Forensic Science Laboratory is on record, besides, this
the informant was also not examined.
4. The punishment under NDPS Act are harsh and as such
requires strict adherence to procedural safeguards. In
view of the aforesaid cumulative circumstances, this Court
does not find it safe to affirm the Judgment of conviction,
passed by the Trial Court. In the result the Judgment and
Order of conviction, dated 22/24th May, 2007, passed by
learned Additional Sessions Judge, F.T.C.-III, Vaishali at
Hajipur in Jandaha P. S. Case No. 35 of 2002, under
Section 20(b)(i) of N.D.P.S. Act is set aside and the
appellant, namely, Naresh Singh, is directed to be
released from custody if he is not wanted in any other
case. The appellant is discharged of his liabilities of bail
bond
With the aforesaid direction, this appeal is allowed.
(Samrendra Pratap Singh, J.)
Patna High Court
December 8, 2008
SKM/ NAFR