Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.223 of 1996 ====================================================== 1. Akali Devi , W/O Budho Mandal 2. Hasina Begam, W/o Bablu Khan Both resident of village Baburia, P.S. Dalwarian, District- Howrah, West Bengal. Versus .... .... Appellant/s State Of Bihar .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ganesh Prasad Singh & Mr. Anirudh Kumar Singh, Advocates. For the Respondent/s : Mr. S.A. Ahmad, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA ORAL ORDER 6 08-07-2013 Both the appellants have preferred this appeal against their conviction for the offence under section 20 (i) (b) of the N.D.P.S. Act and sentenced to undergo R.I. for five years and further pay a fine of Rs. 10,000/- each, as awarded by the learned Ist Additional Sessions Judge, Rohtas at Sasaram in G.R. No. 738
Legal Reasoning
of 1994 arising out of Karakat P.S. Case No. 137 of 1994 on 17th August, 1996. Both the appellants were apprehended during search conducted on confidential informant and the case was instituted. They were all along in custody during trial. Subsequently, in appeal though they were ordered to be released on bail, but since the conditions imposed could not be complied with and their prayer seeking modification and relaxation in the Patna High Court CR. APP (SJ) No.223 of 1996 (6) dt.08-07-2013 2 condition imposed also finally turned down, but inspite of their assertion at the relevant time and the observation vide order dated 5.10.1999 no attempt on behalf of them appears to be made for
Legal Reasoning
early hearing of appeal and the learned counsel representing them is not in a position to state whether after serving the period of sentence awarded, they are still in custody or released. The prosecution case, as is evident from Ext. 3, an application of one Raj Kumar Prasad, A.S.I. Karakat Police Station that on 30th September, 1994 on confidential information as regard to transportation of illegal Ganja in a Bus bearing No. BR- 16- 2061 to Ranchi, a raid was conducted at 16.30 hours while the Bus arrived opposite the police station on the road and during search of bus just behind driver’s cabin two appellants were found sitting with Plastic Dolchi and bag wherein two bundles of Ganja wrapped under newspaper were found. No papers could be shown by them. Articles were seized, seizure list was prepared and they disclosed their names also. The case was instituted for the offence under section 47 of the Excise Act. Subsequently, after investigation charge sheet was submitted for the offence under section 20 (b) of the N.D.P.S. Act and after taking into consideration the provision charge was framed for the offence under section 20 (i) (b) of the N.D.P. S. Act and the trial Patna High Court CR. APP (SJ) No.223 of 1996 (6) dt.08-07-2013 3 commenced. The prosecution examined altogether six witnesses besides the following documents:- Ext.1- Seizure list. Ext.2- Examination report. Ext.3- Written report. Statements of the accused persons recorded under section 313 of the Cr.P.C. on 26th March, 1996. Thereafter, I.O. of the case appears examined as a Court witness on 24th July, 1996 and finally discharged on the next day. On consideration of the materials available, the trial court found the appellants guilty and convicted and sentenced in the manner stated above. It is contended on behalf of the appellants that the seized articles were neither weighed nor properly sampled or examined by the competent authority and also search and seizure were made without complying the provisions of Section 50 of the N.D.P.S. Act. On the other hand, learned Additional P.P. tried to support findings, but from Ext.3 itself it does not appear that search and seizure was made in presence of any Gazetted officer inspite of the fact that the prosecution was well aware of the fact Patna High Court CR. APP (SJ) No.223 of 1996 (6) dt.08-07-2013 4 regarding transportation of contravened articles in a Bus which was to pass through police station. It is also not evident that any measurement was done or any sample etc. was prepared. In this background, P.W.1 Rajendra Prasad, the seizure list witness proved seizure list (Ext.1), but he is silent about any measurement or intimation to the appellants regarding their right to search in their presence or any person. In cross- examination, in para-6 he denied going to inside the Bus and any search and seizure in his presence after permitting the Bus to proceed his signature was obtained and he is also not in a position to say of which of the two packets belongs to either of the two appellants. P.W. 2 Rambilash Prasad, another seizure list witness accepts Ext.1, but in cross examination also denied any such search or seizure in his presence though he put his signature only as directed by the police officer. P.W.3, Awadh Kumar Singh, A.S.I. police member of the raiding party in paragraph-2 of the examination-in-chief states about around 3 k.g. of Ganja with appellant no.2, Hasina Begam and 1 kg. with appellant no.1, Akali Devi. He too is silent about any weighing of the articles; rather he suggests approximate weight only. He is also silent about any sampling. At no point of Patna High Court CR. APP (SJ) No.223 of 1996 (6) dt.08-07-2013 5 time he has also said about any intimation to the appellants about their legal right. Towards end of the cross examination in para-26 he admits that he has or have no information as regard to any criminal history of the appellants or materials to show that they are indulging in such a business. P.W.4, Deo Lakhan Singh, a police constable, nothing more than what other police witnesses have said, there is nothing to discuss. P.W.5 another constable Rajendra Ram, tendered for cross-examination. P.W.6, the Excise Inspector, who said to have examined the seized articles and found the same as Ganja and in cross-examination in para-7 says about receiving five packets as samples which was tested by him, but in absence of any evidence showing sampling from the seized articles and transmission of the same for examination makes any statement of this witness inadmissible. The last witness Bachcha Upadhayay, examined as a Court witness, after examination of the appellants under section 313 Cr.P.C. shows even if anything comes in his statement against the appellants cannot be used, since nothing was put to them to meet as required under section 313 of the Cr.P.C. Further more this witness also has not improved prosecution version as regard Patna High Court CR. APP (SJ) No.223 of 1996 (6) dt.08-07-2013 6 weighing of the seized articles, making sampling etc. On a careful consideration of the evidence afore- discussed, it is crystal clear that the prosecution has miserably failed in establishing the charges leveled against the appellants. Consequently, their conviction and sentence is not at all sustainable and therefore set aside and appeal is hereby allowed and the unfortunate appellants, if at all in custody, henceforth ordered to be released. And at the same time if they are detained after serving the sentence awarded, the Jail Superintendent, Rohtas is also directed to submit an explanation for such unlawful detention of the appellants, if any. (Akhilesh Chandra, J) Abhay/-