CRIMINAL APPEAL (SJ) No.259 OF 2007
Against the judgment of conviction and order of sentence dated
17.01.2007 and 18.01.2007 passed by learned 1st Additional
Session's Judge-cum-Special Judge, Sitamarhi, in connection with
G.R. No. 445/99/Tr. No. 47/2006(27/2007).
SURENDRA KUMAR @ RAM BABU RAI, Son of Net Lal Rai, resident
of village - Chainpura, P.S. - Pupri, District - Sitamarhi.
-------Appellant.
Versus
THE STATE OF BIHAR ---------Respondents.
******
For the appellant : Mr. Farukh Ahmad Khan,
Mr. Mahendra Thakur,
For the State : Mr. S.N. Prasad, APP.
******
PRESENT
THE HON’BLE MR. JUSTICE AKHILESH CHANDRA
*******
Akhilesh Chandra, J. The sole appellant has preferred this
appeal against his conviction under section
20(b)(ii)(c) of the N.D.P.S. Act and sentence to
undergo rigorous imprisonment for ten years and
pay a fine of Rs. 1,00,000/- in default of
payment of fine further rigorous imprisonment
for two years awarded by learned 1st Additional
Sessions Judge, Sitamarhi in G.R. No.
445/99/Tr. No. 47/2006(27/2007).
2. The prosecution has reveal from
Ext.3, the self written statement of S.I. Shyam
Sundar Singh (P.W.5) recorded at 1.00 A.M. on
31.08.1999 at the door of appellant in village
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Chainpura, P.S. – Pupri, district – Sitamarhi, is
that at about 10.10 P.M. on 30.09.1999 the
informant got a confidential information that
there is Nepali Ganja lying in the house of the
appellant in huge quantity and it is likely to be
disposed of, immediately on recording sanha no.
583 (not on record) the raiding party was
conducted under the leadership of the informant,
wherein Ajay Kumar Singh (P.W.6) and two
chowkidar namely, Shrawan Rai (P.W.1) and
Satya Narayan Paswan (P.W.2) besides Ajay
Kumar Singh (P.W.6) were members. The raiding
party arrived at the place of occurrence at about
12.00 P.M. and found four persons fleeing, out of
whom three, the appellant Surendra Kumar @
Ram babu Rai, Nagendra Bhagat and Dhorai Rai
(two acquitted accused) could be apprehended
and one Net Lal Rai (father of appellant and
acquitted acused) successfully escaped. The raid
was conducted in the house of the appellant and
from the southern room behind a bed concealed
under carpet eight packets in one plastic bag of
Ganja weighted 150 kg were recovered and the
persons apprehended failed to produce any valid
document. Search was conducted in presence of
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villagers Nawal Rai (P.W.4) and Ram Lalit Rai
(P.W.3) and Seizure list was prepared, article was
seized and on the basis of this statement at
Police Station, Pupri P.S. Case No. 130/99 was
registered under sections 22/23 of the N.D.P.S.
Act. After investigation, police submitted charge
sheet under section 22/23 of N.D.P.S. Act
against four persons against whom on taking
cognizance trial commenced after framing and
explaining the charge under section 20 of the
Act.
3. In support of prosecution,
altogether nine witnesses have been examined
besides producing the following by way of
documentary evidence:
Ext. 1 : Signature of Ram Lalit
Rai (P.W.3) on Seizure list.
Ext. 1/1 : Signature of Ram
Babu Rai on the seizure list.
Ext. 1/2 : Signature of Nawal
Rai (P.W.4) on the seizure list.
Ext. 1/3 : Signature of Shyam
Sundar Singh (P.W.5) on the
seizure list.
Ext. 2 : Seizure list.
4Ext. 3 : Fardbeyan.
Ext. 4 : Formal F.I.R.
Ext. 4/1: Signature of Rajesh
Barnwal officer-in-charge on
First Information Report.
Ext.5 : Report of F.S.L.
and on consideration whereof three
persons facing trial were acquitted whereas the
appellant was convicted and sentenced giving
rise to present appeal.
4. It is submitted on behalf of the
appellant that there is no evidence to support
any recovery from the possession of the appellant
nor the seized article were properly weighed,
samples were prepared or sent for chemical
examination even during trial. Nothing could be
produced rather out of alleged 150 kg of Ganja,
unsealed 10 kg was produced claiming to be
seized in the instant case, that apart none of the
mandatory provisions including section 50 of the
N.D.P.S. Act has been complied with.
5. On the other hand, learned
Additional Public Prosecutor while supporting
the case submitted that prosecution has been
able to establish the case and compliance of
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section 50 of the N.D.P.S. Act, which was not at
all required as the search and recovery was made
from the house of the appellant.
6. Now, it is to be seen in this
appeal whether the prosecution has been able to
substantiate the charge against the appellant
beyond any shadow of reasonable doubt or
findings of the court below requires any
interference.
7. As per prosecution case, on
getting information about lying Ganja in huge
quantity for the purpose of disposal in his house
belonging to the appellant, one raiding party was
organized, but from nowhere it appears that any
superior officer was intimated before proceeding
in the search. The officer-in-charge was not
available and there was no member in the
raiding party said to be a gazetted officer.
8. Shrawan Rai (P.W.1), village
Chowkidar, has come to say that raid was
conducted in a hut situated on government land
south to the residential house of acquitted
accused Net Lal Rai and in said hut the children
used to get their studies. In cross examination,
this witness has said that said hut was erected
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by villagers for the purpose of education of
children which was open hut without any door
etc. Almost similar is the position of another
chowkidar Satya Narayan Paswan (P.W.2). Both
these witnesses further speak that seized article
was brought to police station where papers in
this regard were brought into existence.
9. Ram Lalit Rai (P.W.3), the
witness to seizure list, was brought their custody
to depose during trial comes to say that search
was made in his presence in the house of the
appellant from where 150 kgs of Ganja
containing eight bags was recovered. Copy of
seizure list was handed over to the appellant who
endorsed his signature in receipt and this
witness also signed upon the same as witness
and proved Exts. 1 and 1/1. In cross
examination, it has come that this witness is at
inimical term which all the accused facing trial
since much before the instant case and was in
custody in connection with the cases lodged by
the accused against him. Similar is the position
of Nawal Rai (P.W.4) full brother of P.W.3. None
of these two witnesses claimed going to police
station with the seized articles or the accused
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apprehended or with the police party and if as
per earlier two witnesses seizure list etc. was
prepared at police station, how copy of the same
can be served upon the appellant at the place of
recovery. There is nothing to explain.
10. Shyam Sundar Singh (P.W.5)
A.S.I. member of the raiding party and the
informant, at the relevant time in absence of
officer-in-charge was in control of the affairs of
the police station. On getting confidential
information arranged raiding party constituting
P.Ws. 1, 2, 6 and other constables and Havildars
when arrived near the house of the appellant,
four persons tried to escape in which three were
apprehended. Search was conducted in the
house of the appellant and from south of the
house beneath a palang, eight bags of Ganja was
recovered which was estimated to be 150 kgs
(not weighed), seizure list was prepared which is
in the pen of Ajay Kumar Singh (P.W.6). This
witness has put his signature on the seizure list
(Ext.1/3) copy of which was served upon
appellant and this witness at about 1.00 A.M. at
P.O. itself and prepared self statement (Ext.3)
and entrusted investigation of the case to Ajay
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Kumar Singh (P.W.6) at police station where the
case was instituted. Formal F.I.R. is Ext.4,
whereon the officer-in-charge who had arrived,
meanwhile put his signature (Ext.4/1).
11. In cross examination, he admits
that seized articles was brought to police station
with members of the raiding party who brought
the same into a Geep, which was weighted at
police station and thereafter kept in Malkhana,
but nowhere this witness has said a word about
concealing of the seized articles or taking out any
required amount from the same for the purpose
of sampling and chemical examination. Similar is
the position of Ajay Kumar Singh (P.W.6) another
member or raiding party and investigating officer
who initially tried to said in prosecution case. He
further speaks about search conducted in the
respective house of other co-accused Dhorai Rai
and Nagendra Bhagat, but nothing could be
recovered, none of other witnesses have said
anything about such raid being conducted in the
house of other co-accused (since acquitted).
Initially charge sheet was submitted against
three persons including the appellant. However,
subsequently supplementary charge sheet was
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submitted against father of the appellant
(acquitted). In para 8 of the cross examination,
this witness admits Pupri being a sub-divisional
of town where S.D.O. and other executive officers
besides Dy.S.P., all gazetted officers reside but
for the reasons best known, none of these were
available and authorities could be informed. In
Para 11, this witness speaks about the place
from where recovery was made. It is nothing but
an open hut without any door adjacent south of
residential house of the appellant and there was
no other article kept therein whereas informant
(P.W.5) has said that the seized article was kept
behind a palang. This witness is further specific
that he has no paper to show the land over
which the said hut was belongs to the appellant
or his family. On the point of enmity with other
two seizure list witnesses this investigating
officer is silent and in para 18 of the cross
examination he further gives death nail to the
prosecution case while saying that the seized
Ganja was kept unsealed in the Malkhana from
where nine days after i.e. 09.11.1999, sample
was taken and sent for examination. There is no
explanation as to why and under what
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circumstances the seized article was not sealed
nor sample etc. were taken and sealed for
transmission to chemical examination. There is
also no explanation for the delay caused in
sending the article for chemical examination and
such delay itself creates grave doubt against the
prosecution version.
12. Satya Narayan Singh (P.W.7) is a
formal witness, simply proved Ext.5 the report of
chemical examiner. Nawal Kishor Verma (P.W.8),
an A.S.I. and also member of raiding party comes
to say that search and recovery was made in a
hut south to the residential house of the
appellant and it is consistent with the evidence of
P.Ws. 1, 2 and 6. P.W.9 is constable Radha
Mohan, attached with police Malkhana brought
material Exhibit-1 in the court i.e. none else than
10 kgs of Ganja tagged with a rope without any
seal or mark to show that the same was seized in
the instant case as claimed by this witness.
13. All such materials discussed
above rightly provide room to the learned counsel
for the appellant to submit that none of the
mandatory requirement under law has been
fulfilled in the instant case and the materials are
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same and similar under which father of the
appellant Net Lal Rai has already been acquitted
by the trial court.
14. Hence, I find and hold that the
materials available are not sufficient to uphold
the conviction of the appellant. Accordingly, the
conviction and sentence of the appellant is set
aside. This appeal is allowed. The appellant, who
is on bail, is discharged from the liability of the
bail bond furnished on his behalf.
(Akhilesh Chandra, J.)
Patna High Court
Date : The 14th March 2011
Rajeev/N.A.F.R.