Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.52074 of 2007 ====================================================== Shambhu Goel Versus .... .... Petitioner/s State Of Bihar .... .... Opposite Party/s ====================================================== with Criminal Miscellaneous No.52627 of 2007 ====================================================== Shambhu Goel Versus .... .... Petitioner/s State Of Bihar .... .... Opposite Party/s ====================================================== Appearance : (In Cr.Misc. No.52074 of 2007) For the Petitioner/s : Mr. Mr. Diwakar Sinha For the Opposite Party/s : Mr. Mr. Rajni Kant Jha
Legal Reasoning
(In Cr.Misc. No.52627 of 2007) For the Petitioner/s : Mr. Mr. Diwakar Sinha For the Opposite Party/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER 6 13-02-2013 The two applications under Section-482 Cr.P.C. arise from Special Case No.5/94 arising out of Forbesganj P.S. Case No.97/94 registered on 19.6.1994 under Section- 22 of the N.D.P.S. Act, challenging the order of cognizance dated 12.10.2007 and the order dated 5.11.2007 refusing to discharge the petitioner respectively. Heard learned counsel for the petitioner, the State and for Opposite Party No.2 in both applications. Patna High Court Cr.Misc. No.52074 of 2007 (9) dt.13-02-2013 2 A First Information Report was lodged by Opposite Party No.2 on 19.6.1994 at about 6:30 p.m. on basis of secret information that Heroin had been kept in the first floor of the petitioner’s house. A packet wrapped in a Newspaper was recovered from under the mattress. It revealed a plastic bag with whitish DBL Tiger Brand Heroin, seized in presence of the witnesses and seizurelist prepared signed by witnesses, but the petitioner refused to sign. The estimated value of the seized material was Rs. 50,00,000/- approx. The jurisdiction of Sec.482 Cr.P.C., in the facts of the case shall be confined to examination of materials fit for trial and not the sufficiency of the materials. Whether the nature of the legal evidence available for trial would render the trial an abuse of the process of law. A sample of the Heroin stated to have been seized was sent to the Director, Forensic Science Laboratory, Bihar, at Patna on 18.8.1994. It was received on 31.8.1994 and the report submitted on 24.10.1994. The report stated there was no trace of Heroin or any psychotropic element detected in the white powdery substance. The white powdery substance answered description of starch. The prosecution thought it appropriate to send another sample on 30.8.1994 to the Central Revenue Control Laboraory, New Delhi, where it was received on 5.9.1994. The report dated 12.9.1994 stated Patna High Court Cr.Misc. No.52074 of 2007 (9) dt.13-02-2013 3 that the sample was in the form of white powder answering positive for starch. It did not answer positive tests for presence of Morphine or Diacetyl Morphine. These two reports were submitted in Court. On 26.7.1995 the Opposite Party No.2 is stated to have filed a protest petition. Notwithstanding his protest application, the Investigating Officer submitted final form on 20.11.1995 showing the case to be false, in light of the two F.S.L. reports. On 16.8.2000 the Special Judge declined to accept the final form and directed further investigation. Pursuant to the order, on 30.9.2003 sample was taken for the third time in presence of the Judicial Magistrate 1st Class who had observed that the original polythene bag itself was in torn condition. This third sample was then sent to the Regional Forensic Science Laboratory, Muzaffarpur nine months later on 12.6.2004. It was received at the laboratory on 29.6.2004. The report came nearly one year later on 11.6.2005. Contrary to the earlier two reports that the substance was of white powdery material matching with starch and not narcotics, this report stated that there was some thin presence of brown substance containing Heroin, a diacetyl derivative of Morphine. Charge-sheet was then submitted on 14.2.2006 under Sections-20 and 22 of the N.D.P.S. Act. The petitioner filed an application on 28.3.2006 for dropping of the proceedings. Patna High Court Cr.Misc. No.52074 of 2007 (9) dt.13-02-2013 4 On 18.5.2006 by a reasoned and discussed order the Special Judge declined to accept the report holding that procedures were not followed at the time of collection of the third sample which was not done in presence of the petitioner, as evident from the case diary. Liberty was granted to the Investigating Officer, if he thought it proper, to take a fresh sample according to law in presence of the accused and get it examined by the proper authority. The effort of the prosecution to have a fourth sample taken and send it for examination did not meet the approval of the Court in Cr. Misc. No.24253/07 which directed to dispose of the trial on basis of the materials on record. Learned counsel for the petitioner submitted that if the first two samples tested negative to narcotics and the third sample on basis of which charge-sheet was submitted has been rejected by the Court with no challenge to the order which has attained finality, there is no legal evidence available to put the petitioner on trial. If there is no legal material for trial, there is no justification to compel the petitioner to undergo the travails of a criminal prosecution with absolutely no possibility of conviction. It shall be a complete abuse of the process of Court. Learned counsel for the State submitted that this Court in Cr. Misc. No.24253/07 has already given directions for concluding the trial expeditiously. Patna High Court Cr.Misc. No.52074 of 2007 (9) dt.13-02-2013 5 Learned counsel for Opposite Party No.2 also opposed the applications on a similar stand. The earlier two samples of narcotics sent to the F.S.L. at Patna and New Delhi have not tested positive for narcotics. Merely because a protest petition may have been filed or the Court may have ordered further investigation shall not detract from the relevance of the two reports. There is no formal challenge to the two reports and neither were the two samples sent for re-verification on the occasion when the third sample was being sent. To permit repeated samples to be taken may amount to permitting the prosecution to fill up the lacuna till a report to the satisfaction of the prosecution is submitted. The earlier two reports were to the effect that it matches positive starch of white powdery substance. The third report states that it is a brown substance. The time delay from the collection of the sample from a torn bag in sending it to the laboratory and grossly delayed receipt of report are aspects which cannot be ignored. The very edifice of the charge-sheet was the third sample report. It collapses after the Special Judge on 18.5.2006 held that the third sample and which is the only material to put the petitioner on trial was not collected in accordance with law. This order of the Special Judge was not questioned by the prosecution and has attained finality. If the third sample was rejected Patna High Court Cr.Misc. No.52074 of 2007 (9) dt.13-02-2013 6 and the taking of a fourth sample prohibited by the Court, what remains for the prosecution to pursue are the two samples which tested negative for the narcotics and which cannot be the foundation for any trial. In the entirety of the facts and circumstances as discussed above, it is held that no useful purpose is going to be served by allowing the prosecution to continue. To compel the petitioner to face the travails of a criminal prosecution in the facts of the case shall clearly be an abuse of the process of Court. The present situation could well have been avoided if while passing the order dated 5.11.2007 refusing to discharge the petitioner the Special Judge had adequately discussed the earlier two reports and his own order dated 18.5.2006. The order of cognizance dated 12.10.2007 and the entire prosecution of the petitioner in Special Case No.5/94 arising out of Forbesganj P.S. Case No.97/94 under Section-22 of the N.D.P.S. Act is set aside. The order dated 5.11.2007 refusing to discharge the petitioner is also set aside. The applications are allowed. (Navin Sinha, J) K.C.jha/-