The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (S.J.) No. 673 of 2012 [Against the judgment of conviction dated 07.06.2012 and order of sentence dated 12.06.2012 passed by learned Sessions Judge cum Special Judge, Godda in Special Case No.01 of 2007] Sanjay Kumar Sah --Versus-- The State of Jharkhand .... .... …. Appellant …. …. …. Respondent For the Appellant For the State : Mr. S.P. Roy., Advocate : Ms. Shweta Singh, A.P.P. ----- PRESENT : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY By Court :- Heard, learned counsel for the appellant and learned counsel for the State. 1. This appeal is directed against the judgment of conviction and sentence passed in Special Case No.01/2007 arising out of Godda (T) P.S. Case No.17/2007 whereby and whereunder the appellant has been convicted and sentenced to undergo R.I. for six months with fine of Rs.10,000/- under Section 20(b) of the NDPS Act, 1985 and R.I. for three years and fine of Rs.5000/- under Section 47(a) of the Excise Act. 2.
Facts
FIR has been lost on the self statement of the informant, S.I. Godda (T) P.S. The brief facts of the case as set out in the FIR is that on 15.01.2007, informant was on patrolling duty, when he received secret information that one Sanjay Kumar Sah (appellant) had stocked huge quantity of narcotics and liquor illegally in his house and was involved in its illicit trade. It was also informed that if the raid was not committed immediately, the said narcotics could be removed from there. After giving information to the senior officer, the informant with the police party conducted raid at 9.30 p.m., in the house of Sanjay Sah in his presence and before two independent witnesses of locality and seized the following items:- 1. 250 gm. Ganja 2. 30 bottles of 180 ml. each Mac. Dowell Rum 3. 10 bottles of 180 ml. each Green Label 4. 03 bottles of 180 ml. each Royal Stag 3. On the written report, Godda (T) P.S. Case No.17/2007 was registered under Section 8(C)/20(B) of the NDPS Act, Section 47(A) of the Excise Act and Section 290 of the Indian Penal Code. The police, on investigation, submitted charge sheet under theses Section and the appellant was put on trial. 2 4. Altogether seven witnesses have been examined by the prosecution and the documents including seizure list and the report of FSL were adduced into evidence and marked as Exhibit. The defence of the appellant/accused is of denial, but no specific defence has been taken. 5. The judgment of conviction and sentenced has been assailed on the ground that out of seven prosecution witnesses sezure list witnesses namely P.W. 3 and P.W. 4 had not at all supported the prosecution case and were declared hostile. 6. The Investigating Officer has also not been examined causing prejudice to the accused. The liquor which was seized by the police, was not produced before the Court and no chemical examination was done to establish the ingredient of the offence. 7. It is argued by the learned counsel for the appellant that there is no evidence to show that the provisions of Section 42 (2), Section 50(6), Sections 52A (2), 55 & 57 of the NDPS Act has been complied with. Had the officer in charge of the Police Station or the I.O. of the case been examined, the defence would have got an opportunity to cross-examine the witness(es) regarding the procedural formalities followed by the Police in the process of search and seizure. However, the witness(es) was not examined, therefore, the defence has suffered prejudice on this account. 8. Further, the seizure list witnesses have turned hostile, therefore, the factum of search and seizure has not been proved. Reliance is placed upon the judgment of the rendered in the case of Gorakh Nath Prasad vs. State of Bihar, in Criminal Appeal No.2104 of 2017. 9. Learned APP for the State has defended the impugned judgment of conviction and order of sentence. It is submitted that the law is settled that mere turning of the seizure list witness as hostile cannot be said to be a sufficient ground to disbelieve the entire case of prosecution. On definite information, raid was conducted and seizure of narcotics and liquor was seized from the house of the appellant.
Legal Reasoning
10. Having considered the submissions advanced on behalf of both sides and considering the materials on record, this Court is of the view that there is much force in the argument advanced on behalf of the Appellant that conviction under Section 20(b) of the NDPs Act is not sustainable for want of compliance with the procedural requirement of the NDPS Act. 11. Section 42(1) mandates that before the searches conducted by an authorized officer on an information received by him and taken down in 3 writing of such narcotic drug or psychotropic substance in respect of which an office is committed has been concealed, he will record the grounds for his belief for conducting such search and shall within 72 hours send a copy thereof to his immediate official superior. If the officer is on patrol at the time when such information is received, he can send such information subsequent to the search. In any case the requirement of recording ground for proceeding for search and its intimation to the superior official is mandatory. It has been held in Rajinder Singh v. State of Haryana, (2011) 8 SCC 130 10. In Karnail Singh case [(2009) 8 SCC 539 : (2009) 3 SCC (Cri) 887] this Court has held that the provisions of Section 42(2) are mandatory and the essence of the provisions has been set out in the following terms: (SCC pp. 554-55, para 35) “35. In conclusion, what is to be noticed is that Abdul Rashid [Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham [Sajan Abraham v. State of Kerala, (2001) 6 SCC 692 : 2001 SCC (Cri) 1217] hold [Ed.: The words “hold” and “precede” are emphasised the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: in original also.] that (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede [Ed.: The words “hold” and “precede” are emphasised in original also.] the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior 4 forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.” 12. Informant of the case (PW-5) has deposed in para-2 that he had given information to senior officer, but no further details has been given regarding the senior officer to whom such information had been given. Investigating officer has not been examined to throw any light on this aspect. I find that the prosecution has failed to prove that provision of section 42(1) or( 2) has been complied with. 13. In view of the total non-compliance with Section 42 of the NDPS Act, the judgement of conviction and sentence under section 20(b) of the NDPS Act is not sustainable and is accordingly set aside. 14. With regard to the conviction under Section 47(a) of the Excise Act, the main ground of appeal is that the seizure list witnesses have turned hostile and not supported the prosecution case. This Court is not persuaded by the argument that merely because the seizure list witness has turned hostile, the fact of search and seizure could be completely disbelieved. Even in cases under NDPS Act, in case where the search and seizure has been proved by cogent and reliable evidence, the prosecution case cannot be disbelieved on that count alone. A reference to view of the cases decided by Hon’ble Supreme Court will drive home the point. Ashok v. State of M.P., (2011) 5 SCC 123 : 9. The seizure witnesses turning hostile may not be very significant, as it is not an uncommon phenomenon in criminal trials, particularly in cases relating to NDPS but there are some other circumstances which, when taken together, make it very unsafe to uphold the appellant's conviction. 2007(4)EastCrC8SC Ravindran@JohanVsSuperintendent of custom Where two independent witness in whose presence search was conducted were not examined, but evidence of the prosecution has been critically examined by the court below, its finding is not liable to be interfered with. 14. in the present case the fact of search and seizure of foreign liquor has been duly proved by the witnesses. The seizure list witnesses have turned hostile but they have proved the signature on the seizure list. The Appellant failed to 5 produce any valid document with regard to the seized foreign liquor. Under the circumstance the judgement of conviction under section 47 of the Excise Act. 15. On the point of sentence, no past conviction has been proved against the Appellant and therefore a simple imprisonment for two years and fine of Rs 10,000 meet the ends of justice. In the event of default, appellant further to undergo SI of three months. With this modification in finding and sentence the appeal stands dismissed. Jharkhand High Court, Ranchi Dated, 15th February, 2024. NAFR/Anit /Sandeep (Gautam Kumar Choudhary, J.)