) ------ Rajesh Sao, son of Kailash Sao, Resident of Village-Sherpur, PO & PS v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Criminal Appeal (DB) No. 795 of 2014 (Against the judgment of conviction dated 15th September 2014 and the order of sentence dated 26th September 2014 passed by the learned Special Judge, N.D.P.S. Act-Cum-1st Additional Sessions Judge, Chatra in N.D.P.S. Case No. 05 of 2012) ------ Rajesh Sao, son of Kailash Sao, Resident of Village-Sherpur, PO & PS .… ….. Appellant Sadar, District Chatra, Jharkhand. Versus The State of Jharkhand … .... Respondent -------------- CORAM: SRI ANANDA SEN, J. SRI SUBHASH CHAND, J. --------------- For the Appellant For the State : Mrs. Neeharika Majumdar, Advocate : Mrs. Priya Shreshtha, Spl. PP ------- J U D G M E N T Order No.16/Dated: 16 th April 2024 Per, Ananda Sen, J. At 10:30 AM
Legal Reasoning
Mrs. Neeharika Majumdar, the learned counsel for the appellant submits that the appellant has been sentenced to undergo RI for 10 years. He was all along in custody and now 12 years have already elapsed. She also submits that the convict or any other pairvikar is not in touch with her. 2. Considering the submission and the fact that the sentence is for
Decision
10 years and 12 years have already elapsed, we direct the learned APP to seek instructions and inform this Court about the status of the appellant, whether he has been released from custody or not. 3. On the request of learned APP, list this case on 16.04.2024 at 2:15 PM. At 2:15 PM 4. Heard the learned counsel for the appellant and learned APP for the State. 5. A report bearing Letter No. 3423 dated 15.04.2024 has been produced to this Court by the learned APP issued by the Jail Superintendent, Loknayak Jaiprakash Narayan Central Jail, Hazaribagh intimating that this appellant has already served the awarded sentence and thereafter has been released. 6. 7. Letter No.3423 dated 15.04.2024 is taken on record. We are hearing the appeal on merit, which has been argued by Mrs. Neeharika Majumdar and Mrs. Priya Shreshtha on behalf of the appellant and the State respectivley. 8. On a very short point this appeal can be disposed of, thus we are not dealing in much details. 9. The instant criminal appeal has been directed on behalf of the appellant Rajesh Sao against the judgment of conviction dated 15.09.2014 and order of sentence dated 26.09.2014 passed by learned Special Judge, N.D.P.S. Act-Cum-1st Additional Sessions Judge, Chatra in N.D.P.S. Case No.05/2012 (arising out of Sadar P.S. Case No.53 of 2012, G.R. No.235 of 2012) whereby the learned trial court held guilty the appellant for the offence under section 18 of the N.D.P.S. Act, 1985 and sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.1,00,000/- under section 8 of the N.D.P.S. Act and in default of payment of fine, the additional simple imprisonment of six (6) months was directed to undergo. 10. The FIR was lodged at the instance of one Ajay Kumar Sinha, Probationary Dy.SP, Chatra. He recorded his fardbeyan on 23.03.2012. He recorded that at 6:AM in the morning he received an information through 2 the Officer In-charge, Sadar Thana, Chatra that the two persons carrying opium was going to Chatra from village Sherpur via Shangari Jungle to Chatra Town. On receiving this information he came into action and left for the place from where these two persons were to pass. When he reached Sanjana Gaon, near the Primary School it was seen that two person carrying a bag were coming. On seeing the police they tried to flee but the police apprehended one person, who is the appellant before us namely Rajesh Sao, the other fled. This Rajesh Sao confessed that he was transporting opium and they used to receive Rs.500/- per kilo as transportation charge. From his bag approximately 3.5 Kg. of liquid opium, Rs.1,900/- in cash, one mobile, one calculator, one diary and his voter identity card was recovered. In presence of Vivek Kumar Sinha and Pramod Bharti, the seizure list was prepared and these two persons had put their signature on the seizure list. The appellant was arrested and an arrest memo was prepared. A copy of arrest memo and the seizure list was handed over to this appellant. 11. On this aforesaid fardbeyan Chatra Sadar PS Case No. 53 of 2012 under section 18 of the NDPS Act (Narcotic Drugs and Psychotropic Substances Act, 1985) was registered. 12. The police submitted the charge-sheet after finding the case to be true to which the appellant is pleaded not guilty and claimed to be tried. 13. Nine witnesses were examined in this case and several documents including the FSL report were also exhibited. 14. As stated earlier we are not discussing the entire evidence in details but only pointing out the relevant materials which is sufficient for disposal of this appeal. 3 15. The counsel for the appellant submits that the investigation was absolutely perfunctory. The materials were not seized properly neither the procedure of the law was followed, which requires the appellant to be acquitted. 16. The State opposes the prayer and submits that 3.5 Kg. liquid opium was recovered and even the FSL report also suggests that the seized material was opium. 17. 18. The seizure list witnesses have turned hostile. The basic facts which we find from the evidence of the IO and other witnesses are that the seized liquid was not sealed at the place of occurrence. The liquid was taken by the police officials after seizure and thereafter was produced in the court from where the samples were drawn which was sent to the Forensic Science Laboratory for examination. This fact is admitted. Thus we find that after seizure of the material from the appellant i.e. on 23.03.2012 at about 6:30 AM in the morning till production of the same material before Court i.e. on 17.04.2012, for this long period, the seized material was kept unsealed in the custody of the police i.e. in the “Malkhana”. The contraband material was seized but the same was produced before the Court after lapse of 26 days, as such, there is high probability that the material seized can be manipulated. The strict compliance of the procedural requirements are necessary, particularly sealing of the seized narcotics is crucial to maintain integrity of the evidence. Until and unless the integrity of search and seizure list is maintained, accused cannot be convicted under this Act. 19. The Hon'ble Supreme Court in “Ouseph v. State of Kerala” 4 (2004) 10 SCC 647 held as under: 3. Learned amicus curiae appearing for the appellant contended before us that the alleged contraband unsealed were kept with the investigating agency from 14-9-1990 till 28-11- 1990 nearly two months without being sealed, therefore, there is every possibility of the same being tampered with. The courts below have rejected this argument on the ground that such a huge quantity of cannabis, nearly 5 kilograms could not have been purchased by the investigating agency to implicate the appellant forgetting that there is a statutory requirement to seal the seized articles. Under the provisions of Section 55 of the said Act, this requirement may not be mandatory but on facts of this case, keeping the contraband articles in an unsealed condition for such a long time creates doubt in our mind. The period of non-sealing in the circumstances of this case does give rise to a doubt that there might have been a possibility of tampering which cannot be ruled out, more so because sample sent to the Chemical Examiner is a small quantity. The trial court proceeded on the basis that from the statement of the police it showed that it was kept in a safe place, therefore, no prejudice has been caused to the appellant. The prejudice in our opinion is apparent if the seized articles are different from the articles sent to the Chemical Examiner which in this case we cannot say with certainty that the said manipulation has not happened. Therefore, on this ground alone this appeal 5 succeeds and is allowed and the appellant is acquitted. His bail bonds stand discharged. 20. Further from the evidence we find that merely on basis of assumption the prosecution had assumed the weight of the material as 3.5 Kg. Admittedly from the evidence it is clear that the contraband was not weighed. 21. All these facts create a doubt as to whether the contraband which was seized was actually sent for FSL report or not. Non-sealing of the alleged contraband at the place of occurrence creates reasonable doubt in the mind of the Court as to whether the same was manipulated or not. The compliance of section 55 of the NDPS Act is missing in the instant case. 22. PW6 is also admitted that there was prior information about transportation of this opium, which is also mentioned in the FIR/fardbeyan itself. The said information was not reduced in writing and nor was placed before the Trial Court. Further the Malkhana register was also not produced before the Court. These catches create a doubt about the seizure of the materials. Once a doubt is created, benefit of the same must go in favour of the accused. Thus, we hold that the conviction of the appellant and the finding of guilty is bad in view of non-compliance of the statutory provisions, including non-sealing of the material and producing the same in an unsealed condition before the court after long delay i.e. 26 days. 23. Thus, we are inclined to allow this appeal and set aside the judgment of conviction dated 15.09.2014 and order of sentence dated 26.09.2014 passed by the learned Special Judge, N.D.P.S. Act-cum-1st Additional Sessions Judge, Chatra in N.D.P.S. Case No.05/2012 (arising out 6 of Sadar P.S. Case No.53 of 2012, G.R. No.235 of 2012). As such, the appellant is acquitted of the charge. 24. The appellant was already released by the jail authority after serving more than the awarded sentence which is evident from the Letter No.3423 dated 15.04.2024. 25. 26. This appeal is accordingly, allowed. Let the record of learned lower court be sent back alongwith copy of judgment for necessary compliance. (ANANDA SEN, J.) (SUBHASH CHAND, J.) RKM 7