High Court
Case Details
Cr. Appeal (DB) No. 558 of 2016 With Cr. Appeal (DB) No. 591 of 2016 With Cr. Appeal (DB) No. 683 of 2016 With Cr. Appeal (DB) No. 394 of 2018 ------ Against the judgment of conviction dated 17.05.2016 and order of sentence dated 20.05.2016 passed by Shri Santosh Kumar No. II, learned Additional Sessions Judge-V, Chatra in N.D.P.S. Case No. 13 of 2013. -------- Vikash Prasad Keshri …..Appellant in Cr. Appeal (DB) No. 558/2016 Niranjan Kumar Chandravanshi @ Niranjan Kumar ..…..Appellant in Cr. Appeal (DB) No. 591/2016 Pradeep Kumar Keshri ……..Appellant in Cr. Appeal (DB) No. 683/2016 Dwarika Ganjhu …….Appellant in Cr. Appeal (DB) No. 394/2018 ------- -------- ------- Versus The State of Jharkhand. -------- ….Respondent For the Appellant (s) For the State
Legal Reasoning
: Mr. Arwind Kumar, Advocate : Mr. Pankaj Kumar, Advocate : Mr. A.K. Chaturvedi, Advocate : Mr. Ravi Prakash, Spl P.P. : Mrs. Priya Shrestha, Special P.P. -------- PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE AMBUJ NATH -------- 13/_5/04/2023 Heard Mr. Arwind Kumar, learned counsel for the appellants in Cr. Appeal (DB) No. 558 of 2016 and Cr. Appeal (DB) No. 591 of 2016, Mr. Pankaj Kumar, learned counsel for the appellant in Cr. Appeal (DB) No. 683 of 2016, Mr. A.K. Chaturvedi, learned counsel for the appellant in Cr. Appeal (DB) No. 394 of 2018 and opposed by Mr. Ravi Prakash, learned Special P.P. and Mrs. Priya Shrestha, learned Special P.P. 2. being disposed of by this common order. 3. These appeals are directed against the judgment of conviction dated Since all these appeals arise out of a common judgement, the same are 17.05.2016 and order of sentence dated 20.05.2016 passed by Shri Santosh Kumar No. II, learned Additional Sessions Judge-V, Chatra in connection with N.D.P.S. Case No. 13 of 2013, whereby and whereunder the appellants have been convicted for the offence punishable under sections 18 of the NDPS Act 2 Cr. Appeal (D.B) No. 558 of 2016 With Cr. Appeal (D.B) No. 591 of 2016 With Cr. Appeal (D.B) No. 683 of 2016 With Cr. Appeal (D.B) No. 394 of 2018 and have been sentenced to undergo rigorous imprisonment for ten years along with a fine of Rs.1,00,000/- each and in default in payment of fine to undergo simple imprisonment for one year after expiry of the main sentence. 4. The written report of Ramanand Choudhary, Circle Inspector, Simaria reveals that on 14.3.2013 on the orders of the superior authorities, a police force was constituted to conduct raid against the extremists and gather information. It has been alleged that today i.e. 15.3.2013 an information was received at 4 A.M. that some persons on motorcycles and having opium in their possession were likely to go towards Lawalong and Chatra. After transmitting such information to the superior authorities, the police officials hid themselves behind the bushes near Hosir More. At about 5.30 A.M., three motorcycles were seen coming from Panki towards Lawalong, at which the police officials signaled them to stop. As soon as the motorcycles stopped, three persons, who were in a motorcycle, which was coming last, tried to flee away but one of them was apprehended. It has been alleged that five other persons were apprehended from the rest two motorcycles. In the meantime, the S.D.P.O., Tandwa reached the place of occurrence. The apprehended accused persons disclosed their names as (1) Niranjan Kumar Chandravanshi (2) Dwarika Ganjhu (3) Nepali Ganjhu (4) Vikash Prasad Keshri (5) Raju Prasad Keshari and (6) Pradeep Prasad Keshari. The apprehended accused persons were searched and from their possession, motorcycles, mobiles, cash and 9 Kg. of opium were recovered. After seizing the recovered articles, a seizure list was prepared. It has been alleged that Sadab Mian and Jaggan Mian had however managed to escape. 5. Based on the aforesaid allegations, Lawalong P.S. Case No. 14 of 2013 was instituted for the offences punishable under section 414 IPC, Sections 15, 17, 18, 25 and 27A NDPS Act against eight named accused persons. After completion of investigation, chargesheet was submitted, after which cognizance was taken. Charge was framed against the accused for the offence punishable under section 18 NDPS Act and Section 414 IPC, which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 6. its case. The prosecution has examined as many as nine witnesses in support of P.W-1-Jai Kishore Singh has stated that on 14.3.2013, he had reached Hosir More along with the officer in charge, Shree Chandrama Singh, C.R.P.F. Personnel and other police officials and had started checking vehicles. In the 3 Cr. Appeal (D.B) No. 558 of 2016 With Cr. Appeal (D.B) No. 591 of 2016 With Cr. Appeal (D.B) No. 683 of 2016 With Cr. Appeal (D.B) No. 394 of 2018 meantime, three motorcycles with eight persons riding on them were seen coming and on being stopped five persons were apprehended and some of the persons riding on a motorcycle tried to flee but one of them was also apprehended. On search, 9 Kg. of opium was recovered, for which a seizure list was prepared. In cross-examination, he has deposed that the opium was not sealed at the place of occurrence in his presence. P.W-2-Sawan Ganjhu was declared hostile by the prosecution. P.W-3-Chandrama Singh was posted as Officer incharge, Lawalong P.S. and on 14.3.2013 in course of conducting a raid against the Maoists had received a secret information at 4 A.M. that some persons on motorcycles with opium in their possession were likely to go towards Chatra. After giving such information to S.D.P.O., Tandwa, the force reached Hosir More and hid themselves in the jungle. In the meantime, the S.D.P.O. also reached the said place. At around 5.30 A.M, some persons were seen coming in motorcycles and on being stopped by the police, five persons on two motorcycles were apprehended while one person who was in another motorcycle and was trying to flee away was also apprehended. From the person who was apprehended on chase, from a polythene bag, two and half K.G. of opium was recovered. From two other persons, 4 Kg. and 2 and ½ Kg. of opium were recovered. He has stated that from the trouser of Vikash Kumar Keshari, Rs. 41,700/-in cash was recovered. The accused persons had disclosed their names as Niranjan Kumar Chandravanshi, Dwarika Ganjhu, Nepali Ganjhu, Vikash Prasad Keshari, Raju Prasad Keshari and Pradeep Prasad Keshari. The miscreants who had fled away were Hasnain @ Jaggan and Sadab Mian. After the FIR was registered, he had taken over the investigation. He has proved the formal F.I.R.,which has been marked as Ext-1. The written report has been proved and marked as Ext- 2. In course of investigation, he had recorded the restatement of the informant and had also inspected the place of occurrence, which is at Hosir More situated in Lawalong to Panki Main Road. The confessional statements of the accused persons were recorded. The sample of the seized opium was sent to FSL and the seized opium and other articles were sent to the Malkhana. He had submitted chargesheet against six accused persons and for the rest accused, investigation was kept pending. In cross-examination on behalf of Vikash Prasad Keshari and Raju Prasad 4 Cr. Appeal (D.B) No. 558 of 2016 With Cr. Appeal (D.B) No. 591 of 2016 With Cr. Appeal (D.B) No. 683 of 2016 With Cr. Appeal (D.B) No. 394 of 2018 Keshari, he has deposed that he was not present at the spot when the seizure list was prepared. He came to know about the seized articles from the contents of the seizure list. He has stated that Rs.41,700/-cash and mobiles were seized by the S.D.P.O. He had got the seized opium weighed and had also sealed the opium. He had not taken the signature of the accused persons in the sealed packets but had taken the signature of the accused. In cross-examination on behalf of the rest accused persons, he has deposed that since the search was conducted by the Additional S.P. only he can disclose as to whether he had given an option to the accused to get the search conducted in presence of a Magistrate. P.W-4-Ramanand Choudhary was posted as a police inspector, Simaria and on 14.3.2013, on a secret information, he and the police force as well as the C.R.P.F. Battalion had reached Hosir More. At about 5.45 A.M., three motorcycles were seen coming, which were stopped and six persons were apprehended with opium, cash of Rs.41,700/- and mobiles. He has proved the seizure list, which has been marked as Ext-3. In cross-examination, he has deposed that he is not a witness to the seizure. P.W-5-Subhash Yadav was posted at Simaria Police Station and on 15.03.2013, he along with officer incharge-Chandrama Singh, other police and C.R.P.F. Officials reached Hosir More and hid in the bushes. At around 5.30-5.45 A.M. three motorcycles were seen coming which were stopped and six persons were apprehended though two managed to flee away. On search from two persons, 2 and ½ Kg. each of opium and from one person 4 Kg of opium were recovered. He could not identify any of the accused due to lapse of time. In cross-examination, he has deposed that the seizure was made by the authorities. P.W-6-Ramanujan Kumar Singh was posted as a reserve guard in Lawalong P.S. and on 15.03.2013, he had gone to Hosir More along with the members of the police and C.R.P.F. Force. He has stated that they had hid themselves behind the bushes and on seeing three motorcycles coming the same were stopped and six persons were apprehended. Opium was seized from three of the apprehended persons and he had signed on the seizure list. The seizure list has been marked as Ext-3 while his signature in the seizure list has been marked as Ext-3/1. In cross-examination, he has deposed that the seizure list was prepared 5 Cr. Appeal (D.B) No. 558 of 2016 With Cr. Appeal (D.B) No. 591 of 2016 With Cr. Appeal (D.B) No. 683 of 2016 With Cr. Appeal (D.B) No. 394 of 2018 at the place of occurrence itself. The search and seizure were made by the officer in charge and the inspector. P.W-7-Ved Prakash Tiwari was also posted as a Reserve Guard in Lawalong P.S. He has stated that he was also a member of the raiding party who had apprehended six persons and from three of the apprehended persons, opium were recovered. In cross-examination, he has deposed that before the search was made of the accused persons no search was conducted of the members of the raiding party. P.W-8-Yerrengunta Sidigowda Ramesh was posted as S.D.P.O. Tandwa and on 15.3.2013, he had received a telephonic information from Shri Chandrama Singh, Officer in charge of Lawalong P.S. that some person with opium in their possession have been apprehended. At this information, he went to Hosir More where the officer in charge of Lawalong P.S., Simaria Inspector- Ramanand Choudhary, officials of the C.R.P.F. 190 battalion and some constables were present. Out of the eight persons, six persons were apprehended, while rest two managed to flee away. The seizure list was prepared on his direction by the officer in charge-Chandrama Singh, in which he had also put his signature and since no independent witness was available, the other police officials had signed as witnesses. He has stated that from the apprehended accused, 8 Kg. of opium and Rs.41,700/- cash were recovered, for which no suitable explanation could be given by them. He has identified his signature in the seizure list, which has been marked as Ext-3/2. He had also signed as a witness in the seizure list of three motorcycles and eight mobiles. In cross-examination, he has deposed that nothing was seized in his presence. The seized opium was sealed in a bag and he had signed on the same. P.W-9- Tribhuwan Ram was the officer in charge of Lawalong P.S. from 12.2.2015 to 4.7.2015. The seized opium in connection with Lawalong P.S. 14 of 2013 on the directions of the Special P.P. has been produced in the court from the Malkhana. The same has been marked as material exhibit no. II/13. The various packets in which the opium has been kept has been marked as material exhibit nos. I, I/1, I/2 and I/3. In cross-examination, he has deposed that none of the material exhibits contains the writing or signature of any accused, witness or police officials. None of the material exhibits were sealed. The material exhibits were kept in a plastic 6 Cr. Appeal (D.B) No. 558 of 2016 With Cr. Appeal (D.B) No. 591 of 2016 With Cr. Appeal (D.B) No. 683 of 2016 With Cr. Appeal (D.B) No. 394 of 2018 bag tied by an ordinary thread. The material exhibits also did not mention their weight. 7. which they have simply denied their involvement in the offence. 8. It has been submitted by the learned counsel for the appellants that the The statement of the accused under section 313 Cr.P.C. was recorded in seizure of opium as alleged is itself bad in law as there is a major contradiction in the statement of the witnesses as to who had seized the opium. As per P.W- 8, the seizure list was prepared by P.W-3 but the same is contrary to what has been stated by P.W-3 that he was not present at the time of seizure. The material exhibits, which were produced in the court, were neither sealed nor contained the signature of the accused or the witnesses as per P.W-9, which further casts a doubt over the purported seizure. 9. Learned Special P.P. has on the other hand submitted that all the appellants were involved in the transportation of 9 Kg. of opium and there is no doubt about the fact that the opium was seized by the police officials and certain minor discrepancies in the evidence of the witnesses would not affect the case of the prosecution. 10. We have heard the learned counsel for the respective parties and have also perused the Lower Court Records. 11. The appellants were apprehended by the police and from their joint possession, 9 Kg. of opium, Rs.41,700/-cash, 8 mobiles and motorcycles were recovered. 12. As per P.W-6, the search and seizure was made by the officer in charge and the Inspector of Police. As per P.W-8, who is the S.D.P.O., Tandwa, the seizure was made by the officer in charge on his direction though P.W-8 in his cross-examination, has stated that nothing was seized in his presence. The officer in charge has been examined as P.W-3 and he in his cross-examination, has deposed that he was not present at the spot when the seizure list was prepared. The seizure of opium therefore has been contradicted by the evidence of P.W-3, P.W-6 and P.W-8. This lacuna in the prosecution case has been further enhanced by the testimony of P.W-9 who had produced the seized opium in Court and neither the same was sealed nor the same contained the writing and signature of any of the appellants, witnesses or police officials. None of the witnesses have stated that the seized opium was sealed at the place of occurrence. Therefore there is an apparent doubt with respect to the contraband having been seized and sealed in accordance with law. P.W-3 who has been 7 Cr. Appeal (D.B) No. 558 of 2016 With Cr. Appeal (D.B) No. 591 of 2016 With Cr. Appeal (D.B) No. 683 of 2016 With Cr. Appeal (D.B) No. 394 of 2018 attributed by P.W-8 as the person who has prepared the seizure list in his cross- examination has further decimated the case of the prosecution by deposing that he could come to know about the seized articles from the contents of the seizure list. 13. When the search and seizure itself is doubtful and the seized contraband having not been sealed, the conviction of the appellants could not have been secured by the prosecution. 14. In such view of the matter, we hereby set aside the judgment of conviction dated 17.05.2016 and order of sentence dated 20.05.2016 passed by Shri Santosh Kumar No. II, learned Additional Sessions Judge-V, Chatra in N.D.P.S. Case No. 13 of 2013. These appeals are allowed. 15. Since the appellants are in custody, they are directed to be released forthwith if not wanted in any other case. (Rongon Mukhopadhyay,J) (Ambuj Nath, J) Jharkhand High Court, Ranchi Dated the 5th /April, 2023 Rakesh/NAFR