DEO NARAIN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is against the judgment of conviction and order of sentence dated 28.7.2007 of the 1st Addl. Sessions Judge, Saran passed in N.D.P.S. Case No. 8 of 2005, whereby the appellant has been convicted under Section 20(b)(II)(c) of the N.D.P.S. Act (hereinafter referred to as the Act) and sentenced to undergo R.I. for ten years and a fine of one lakh and in default of payment of fine to undergo R.I. for two more years. The prosecution story, as per the written statement of informant Ajay Sharma (P.W. 1) A.S.I. of Chapra Rail P.S. was that on 2.7.2005 at 7.45 p.m. he received a confidential information at the P.S. that a person who was wearing cream colour Safari was moving on platform No. 1 carrying a briefcase and a handbag and that he was about to catch the train for going away. The informant had also got information that ganja was contained in the briefcase and handbag carried by that person. On receiving information the informant set out to go to railway platform No. 1. He was accompanied by A.S.I. Surendra Kumar Singh (P.W. 3), constable Hareram Singh (P.W, 5), Dharmendra Ojha (P.W. 2), Rakesh Kumar (not examined). When the police party reached on platform No. 1 below the over bridge, one man of that description was seen. The time was 7'O' clock. The person was carrying a V.I.P. briefcase and a handbag. On being asked the person felt confounded and he started giving evasive reply but on further question he disclosed his name Deo Narayan Singh, the appellant. The informant further stated that in presence of witnesses, namely Sushil Kumar (P.W.4) and Dineshwar Sharma (not examined), the briefcase and the bag possessed by the appellant was searched. As a result of search 16 Kgs of Ganja in two packets of orange and Khakhi colour was recovered from the briefcase and 14 Kgs of Ganja in five packets of Khaki and orange colour was recovered from the handbag. Besides this cash money of Rs. 2200/- was also found in possession of the appellant. The possession of the ganja was not explained and hence the same was seized and seizure list was also prepared. The informant proceeded to the Chapra Rail P.S. and gave out his written report, on the basis of which F.I.R. was instituted and investigation commenced. On completion of the investigation charge-sheet was submitted and then the appellant was put on trial and he had been convicted and sentenced.

(2.) As many as seven witnesses were examined by the prosecution. P.W. 1 Ajay Sharma is the informant himself, P.W. 2 Dharmendra Kumar Ojha, constable and P.W. 3 Shurendra Singh, A.S.I. and the P.W. 5 Hareram Singh A.S.I. were the members of the police party which had gone the P.O. and had taken part in the act of recovery and seizure. P.W. 6 Suresh Prasad, S.I. is the Investigating Officer, P.W. 8 Ramesh Kumar constable has produced the material Exts - 1 & 2 which were produced in Court during trial in a sealed condition and on opening the seal ganja was found in the attache and the bag which was marked as Ext-II, P.W. 9 Lal Gupta is the vendor on the platform. P.Ws. 4 & 9 have turned hostile.

(3.) The P.W. 1 supported the prosecution story deposing about the search and seizure and the manner as stated in his written report. He stated about the recovery of 14 Kgs of Ganja from the briefcase and the packet possessed by the appellant. He also deposed about recovery of cash of Rs. 2200/- from the appellant. He has further deposed that he prepared the seizure list in presence of the witnesses. The seizure list was marked as Ext-5. He identified the appellant in dock during trial. This witness was cross-examined by the defence but in the whole of his evidence he did not say anywhere about sealing of the seized article namely, Ganja at the P.O. or at the P.S., where he had lodged the F.I.R. He also does not say in any specific term that he had handed over the articles to the officer-in-Charge. The P.W. 2, P.W. 3 and P.W. 5 who were the police personnel had accompanied the informant during the raid, search and seizure and stated about recovery of the Ganja from the possession of the appellant and about the seizure list and the P.O. where Ganja was recovered but they have adduced no evidence on the matter of sealing of the seized articles.