{"id":139778,"date":"2008-12-08T00:00:00","date_gmt":"2008-12-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/naresh-singh-vs-state-of-bihar-on-8-december-2008"},"modified":"2017-11-09T21:27:38","modified_gmt":"2017-11-09T15:57:38","slug":"naresh-singh-vs-state-of-bihar-on-8-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/naresh-singh-vs-state-of-bihar-on-8-december-2008","title":{"rendered":"Naresh Singh vs State Of Bihar on 8 December, 2008"},"content":{"rendered":"
Patna High Court<\/div>\n
Naresh Singh vs State Of Bihar on 8 December, 2008<\/div>\n
Author: Samarendra Pratap Singh<\/div>\n
                   CRIMINAL APPEAL (U\/S) NO. 670 OF 2007 (SJ)\n\n                  (Against Judgment and Order dated 22\/24th May, 2007,\n                  passed by learned Additional Sessions Judge, Fast\n                  Track Courts-III, Vaishali, at Hajipur in Jandaha P. S.\n                  Case No. 35 of 2002)\n\n\n\n\n                  NARESH SINGH                                  (Appellant)\n                                                 VERSUS\n                  THE STATE OF BIHAR                            (Respondents)\n                                                 ............\n<\/pre>\n
                  For the Appellant:          Shri Sumant Singh, Adv.\n<\/p>\n
                  For the State of Bihar: Shri Satya Narain Prasad, Adv.<\/p>\n
                                                PRESENT<\/p>\n
                  HON’BLE MR. JUSTICE SAMRENDRA PRATAP SINGH<\/p>\n
S. P. Singh, J.         This appeal is directed against Judgment and Order dated<\/p>\n
                  22\/24th May, 2007, passed by learned Additional Sessions<\/p>\n
                  Judge, Fast Track Courts-III, Vaishali, at Hajipur in Jandaha P.<\/p>\n
                  S. Case No. 35 of 2002, whereby, the appellant has been<\/p>\n
                  convicted under Section 20(b)(i) of N.D.P.S. Act and sentenced<\/p>\n
                  to undergo RI for 10 years and also to pay a fine of Rs. 1 lac,<\/p>\n
                  and in default to undergo RI for one year.\n<\/p>\n
                        The informant Baneshwar Tiwary, S.I., Jandaha (not<\/p>\n
                  examined) had gone to village Arniyan to help S.D.P.O., Mahua<\/p>\n
                  in supervision of Mahua P. S. Case No. 31 of 2002. He was
\n accompanied with constable Bindu Ram (P.W. 3), Tapeshwar<\/p>\n
Rai (not examined), Dafadar Gopal Singh (not examined) and<\/p>\n
Driver of the vehicle Shyam Bihari Pandey, P.W. 5. On seeing<\/p>\n
the police party, some persons started fleeing from the door of<\/p>\n
the appellant, Naresh Singh. He learnt the name of the accused<\/p>\n
persons, as Naresh Singh, Mithhu Singh, Umesh Choudhary and<\/p>\n
Sita Ram Mahto. The informant and his men chased them<\/p>\n
unsuccessfully.\n<\/p>\n
       Informant in presence of two independent witnesses,<\/p>\n
namely, Ram Naresh Rai (P.W. 1) and Lakhan Singh (P.W. 2)<\/p>\n
searched the house of Naresh Singh and seized five packets of<\/p>\n
Ganja from the Cot in the house of Naresh Singh, whereas, 2<\/p>\n
packets of Ganja were recovered from the Motorcycle, bearing<\/p>\n
Registration No. BR-24-A-6478, in front of the door of Naresh<\/p>\n
Singh. The villagers stated that Mithhu Singh indulged in illegal<\/p>\n
business of Ganja.\n<\/p>\n
       The informant recorded his own self statement giving rise<\/p>\n
to Jandaha P. S. Case No. 35 of 2002 dated 11.05.2002 against<\/p>\n
accused persons, under Section 20(b)(i) and 22 of N.D.P.S. Act,<\/p>\n
the FIR has been marked as Ext.-2. The case was investigated<\/p>\n
by Sub Inspector, Aditya Kumar, P.W. 4, who took over the<\/p>\n
investigation and submitted chargesheet under Section 20(b)(i)<\/p>\n
and 22 of N.D.P.S. Act. Cognizance of offence was also taken<\/p>\n
under the aforesaid Section and the case was committed to the<\/p>\n
Court of Sessions. Thereafter, finally the case came to the file of<\/p>\n
present Trial Court for disposal.\n<\/p>\n
        The Prosecution, in all, examined 5 witnesses. P.W. 1<\/p>\n
(Ram Naresh Rai) P.W. 2 (Lakhan Singh) are seizure witnesses<\/p>\n
and have turned hostile. P.W. 3 (Bindu Ram) is one of the<\/p>\n
constables of raiding party. P.W. 4 (Aditya Kumar) is the<\/p>\n
Investigating Officer of the case, P.W. 5 (Shyam Bihari Pandey)<\/p>\n
is the Driver of the Jeep. The defence did not examine any<\/p>\n
witness.\n<\/p>\n
       The accusations were explained to the sole appellant,<\/p>\n
facing trial under Section 313 of the Cr.P.C.<\/p>\n
       On consideration of materials on record, the learned Trial<\/p>\n
Court convicted the appellant under Section 20(b)(i) of N.D.P.S.<\/p>\n
Act and sentenced as noted in paragraph 1 of the Judgment.<\/p>\n
       Learned    counsel    for   the   appellant   submits   that<\/p>\n
prosecution did not examine materials witnesses, including<\/p>\n
Baneshwar Tiwary, the informant of the case and Tapeshwar<\/p>\n
Rai, a member of raiding party and the Sub-divisional Police<\/p>\n
Officer, Mahua. He further contends that the prosecution has not<\/p>\n
conclusively proved that the alleged house \/ palani and the said<\/p>\n
Motorcycle bearing Registration No. BR-24-A-6478, from which 5<\/p>\n
and 2 packets of Ganja weighing 45 Kg. in total were recovered,<\/p>\n
belongs to him. As such the conviction is bad.<\/p>\n
       In support of his submission, the learned counsel for the<\/p>\n
appellant relies upon the following cases:<\/p>\n
(i)    State of H.P. Versus Bootinath (1993 Supreme Court)<\/p>\n
(ii)   Anthony Sauri Pillai Versus State of Maharashtra (1993<\/p>\n
Criminal Law Journal 1502)\n<\/p>\n
 (iii)   Md. Alam Khan Versus Narcotics Control Bureau (1996<\/p>\n
Supreme Court 3033)<\/p>\n
        He submits that the seized Ganja were not produced nor<\/p>\n
exhibited before the Magistrate nor there was any explanation for<\/p>\n
the same. In support of his contention, he relies upon the case of<\/p>\n
Jitendra & Anr. Versus State of M.P., reported in 2003, Criminal<\/p>\n
Law Journal, page 4983. He stated that non-remittance of Ganja<\/p>\n
for chemical examination itself cuts at the root of prosecution<\/p>\n
case and in support of his submissions, relied upon the case of<\/p>\n
(i) Pilli Dilli Dora Versus State of Orissa, reported in 1995<\/p>\n
Criminal Law Journal 175 and case of Bachu Singh Vrs. State of<\/p>\n
Bihar 2001 Criminal Law Journal NOC 14: 2001 (2) BLJR, page<\/p>\n
975. He submits that mere recovery would not be sufficient to<\/p>\n
bring home the charge. Apart from that, the two seizure<\/p>\n
witnesses, namely, Ram Naresh Rai (P.W. 1) and Lakhan Singh<\/p>\n
(P.W. 2), have not supported the factum of seizure and have<\/p>\n
been declared hostile.\n<\/p>\n
        On the other hand, learned Counsel for the State submits<\/p>\n
that the witnesses, namely, Bindu Ram (P.W. 3) and Shyam<\/p>\n
Bihari Pandey (P.W. 5) stated that the Ganja in question were<\/p>\n
recovered from a Cot of the house of Naresh Singh as well as<\/p>\n
from Motorcycle     bearing   Registration   No.   BR-24-A-6478,<\/p>\n
standing at the door.\n<\/p>\n
        For bringing home the charge U\/S 20 & 22 of NDPS Act, it<\/p>\n
would be necessary to prove that the place from which Ganga<\/p>\n
was recovered belonged        to   appellant. Learned    Counsel<\/p>\n
submitted that no independent witness was examined in support
\n of proof that the house in question or the Motorcycle, belonged<\/p>\n
to the appellant. He submitted that mere occupation of the house<\/p>\n
in itself would not be sufficient to establish that the same<\/p>\n
belonged to him. It was, however, submitted that there is no<\/p>\n
material to establish that the Ganja in question was brought by<\/p>\n
this appellant or he was in exclusive possession of the same.<\/p>\n
      P.W. 3 (Bindu Ram) in his deposition stated that when he<\/p>\n
and others reached the house of Naresh Singh at Village –<\/p>\n
Arniyan, he found the accused persons fleeing away. P.W. 5,<\/p>\n
Shyam Bihari Pandey in para 3 of his deposition stated that the<\/p>\n
packets were recovered from the house of Naresh Singh. P.W. 4<\/p>\n
(Aditya Kumar), the Investigating Officer of the case, stated that<\/p>\n
he inspected the house of Naresh Singh, situated in Dakshin<\/p>\n
Tola from where 5 packets of Ganja was recovered lying on<\/p>\n
Chauki in the aforesaid premises and 2 packets of Ganja were<\/p>\n
said to be recovered from the Motorcycle bearing Registration<\/p>\n
No. BR-24-A-6478, standing outside the house. He further stated<\/p>\n
that there was none-else in the house nor could he see any other<\/p>\n
things or materials therein. He admitted that he did not examine<\/p>\n
any local witness to ascertain whether the house or Palani<\/p>\n
belonged to Naresh Singh.\n<\/p>\n
      It is true that mere occupation of the premises can not be<\/p>\n
a conclusive proof in itself that the same belongs to the person<\/p>\n
occupying it. In the instant case, P.W. 3 (Bindu Ram) and P.W. 5<\/p>\n
(Shyam Bihari Pandey) as well as Investigating Officer stated<\/p>\n
that they recovered the alleged Ganja from the house of Naresh<\/p>\n
Singh. In urban areas, people may not be very conversant with
\n each other. On the other hand inhabitants of rural areas form a<\/p>\n
close knit and are more conversant with each other being<\/p>\n
localized and population being thin. There are more opportunities<\/p>\n
of interacting with each other as they have common place of<\/p>\n
meeting, entertainment or sports. The police officials of area<\/p>\n
know the inhabitants more closely than in urban areas. Here<\/p>\n
each of three police officials were sure that the Palani \/ house<\/p>\n
belonged to appellant and there is no circumstance to doubt their<\/p>\n
assertion. Thus, I do not find substance in submission of the<\/p>\n
learned counsel for the appellant that prosecution has not been<\/p>\n
able to establish that the house belonged to the petitioner.<\/p>\n
       The ratio decided in the case of Md. Alam Khan Versus<\/p>\n
Narcotics Control Bureau, reported in 1996 Supreme Court<\/p>\n
3033, has no bearing or application in the facts of this case. In<\/p>\n
the aforesaid case, the police raided the house of co-accused,<\/p>\n
who informed that some contrabands have also been concealed<\/p>\n
in a flat in upper floor, of one Md. Alam Khan appellant. The<\/p>\n
Police gathered further information that the appellant has a flat in<\/p>\n
one more locality. On the basis of the aforesaid information, the<\/p>\n
police raided the aforesaid premises and seized some<\/p>\n
contraband materials and attributed the same to appellant Md.<\/p>\n
Alam Khan. The appellant asserted that aforesaid flat does not<\/p>\n
belong to him and he has been falsely implicated by co-accused<\/p>\n
and prosecutrix. In the aforesaid circumstances the Apex Court<\/p>\n
ruled that there is no sufficient evidence on record to show that<\/p>\n
the flat from which drugs have been seized belonged to him. The<\/p>\n
circumstances, the place and facts of the instant case are
\n different. Here the police, P.W. 3, P.W. 5 and the IO asserted<\/p>\n
that they are in knowhow that the house in question belonged to<\/p>\n
Naresh Singh, being police personnel of local thana having<\/p>\n
territorial jurisdiction over the same.\n<\/p>\n
         Nontheless, the prosecution has not brought any material<\/p>\n
on record to show that the motorcycle in question belonged to<\/p>\n
the appellant. No witness deposed to the aforesaid affect.<\/p>\n
Furthermore, the prosecution did not verify in any manner from<\/p>\n
transport or motor vehicle office that the alleged motorcycle<\/p>\n
belonged to appellant. Merely because a contraband is seized<\/p>\n
from a motorcycle, which was parked outside the house, it can<\/p>\n
not be said conclusively that the same belonged to the appellant.<\/p>\n
Further more there is no evidence that the petitioner had kept<\/p>\n
Ganja in the Motorcycle. Thus the Court holds that the<\/p>\n
prosecution has failed to prove the charge that the seized Ganja<\/p>\n
on the Motorcycle bearing Registration No. BR-24-A-6478, was<\/p>\n
either kept or belonged to the appellant beyond all reasonable<\/p>\n
doubt.\n<\/p>\n
   1. The next submission of appellant is that non chemical<\/p>\n
         examination of recovered Ganja caused prejudice to the<\/p>\n
         defence as in its absence it can not be said with certainty<\/p>\n
         that the seized contraband is Ganja. He relied upon the<\/p>\n
         decision rendered in case of Pilli Dilli Dora Supra as well<\/p>\n
         as Bachhu Singh Supra. In case of Bachhu Singh,<\/p>\n
         reported in 2001, Criminal Law Journal NOC 114: 2001(2)<\/p>\n
         BLJR 975, the alleged contrabands seized from the<\/p>\n
         premises of accused were not sent for chemical
\n    examination. In aforesaid circumstances Jharkhand High<\/p>\n
   Court held that non-examination of seized material is fatal.<\/p>\n
   It was further observed that in absence of chemical<\/p>\n
   examination and merely on the basis of earlier statement<\/p>\n
   of one of the witnesses, it can not be held that the<\/p>\n
   substance that was seized from the appellant was Ganja.<\/p>\n
2. In case of Jitendra & Anr. Vrs. State of M.P., reported in<\/p>\n
   2003, Criminal Law Journal page 4983, noticed above,<\/p>\n
   seizure witnesses too did not support the prosecution<\/p>\n
   case. The seized contraband was also not produced<\/p>\n
   before the trial court. The FSL report was not received in<\/p>\n
   the Court and the informant was also not examined. All<\/p>\n
   these circumstances led the Hon’ble Supreme Court to<\/p>\n
   hold that the prosecution has not succeeded in proving<\/p>\n
   the prosecution case beyond all reasonable doubt and<\/p>\n
   acquitted the appellant.\n<\/p>\n
3. The aforesaid ratio would fully apply in the instant case as<\/p>\n
   the pointes involved are similar. Non examination of<\/p>\n
   chemical seized in absence of other corroborative<\/p>\n
   evidence, does weaken the prosecution case. The seized<\/p>\n
   material was neither produced before the Court nor the<\/p>\n
   same was exhibited, neither there is any explanation for<\/p>\n
   the same. Mere oral evidence or seizure list is not<\/p>\n
   sufficient in absence of corroborative evidence to prove<\/p>\n
   the charge. P.W. 1 and P.W. 2, who are the seizure<\/p>\n
   witnesses have not supported the factum of the seizure of<\/p>\n
   the alleged Ganja from the premises of the appellant. In
\n      absence of such corroboration, the seizure list becomes a<\/p>\n
     mere document of the prosecution, which remains<\/p>\n
     unproved substantially.\n<\/p>\n
            Furthermore, the Ganja was not recovered from the<\/p>\n
     personal possession of the accused appellant. Ganja was<\/p>\n
     neither produced in the Court nor any report of the<\/p>\n
     Forensic Science Laboratory is on record, besides, this<\/p>\n
     the informant was also not examined.\n<\/p>\n
  4. The punishment under NDPS Act are harsh and as such<\/p>\n
     requires strict adherence to procedural safeguards. In<\/p>\n
     view of the aforesaid cumulative circumstances, this Court<\/p>\n
     does not find it safe to affirm the Judgment of conviction,<\/p>\n
     passed by the Trial Court. In the result the Judgment and<\/p>\n
     Order of conviction, dated 22\/24th May, 2007, passed by<\/p>\n
     learned Additional Sessions Judge, F.T.C.-III, Vaishali at<\/p>\n
     Hajipur in Jandaha P. S. Case No. 35 of 2002, under<\/p>\n
     Section 20(b)(i) of N.D.P.S. Act is set aside and the<\/p>\n
     appellant, namely, Naresh Singh, is directed to be<\/p>\n
     released from custody if he is not wanted in any other<\/p>\n
     case. The appellant is discharged of his liabilities of bail<\/p>\n
     bond<\/p>\n
            With the aforesaid direction, this appeal is allowed.<\/p>\n
                                 (Samrendra Pratap Singh, J.)<\/p>\n
Patna High Court
\nDecember 8, 2008
\nSKM\/ NAFR\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Naresh Singh vs State Of Bihar on 8 December, 2008 Author: Samarendra Pratap Singh 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-139778","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nNaresh Singh vs State Of Bihar on 8 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/naresh-singh-vs-state-of-bihar-on-8-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Naresh Singh vs State Of Bihar on 8 December, 2008 - 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