JAIKEY AHAMADALIAS JAIKU AHAMAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THREE accused persons, including the present appellant, were put on trial by the learned Special Judge, Patna by framing charges under sections 21 and 25 of the Narcotic Drugs and Psychotropic Substances Act in Special Case no. 53 of 2001 and they were found guilty of committing the above noted offences. Out of the three, Md. Pappu had also been charged under section 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act) but he appears acquitted of that charge.

(2.) THE order of conviction was passed on 4.5.2007 and after hearing the convict on sentence on 8.5.2007, the learned trial judge directed each of the three convicted persons to suffer rigorous imprisonment for five years under each of the two counts as also to pay a fine of rupees fifty thousand in default of which the convicted accused persons were directed to suffer further rigorous imprisonment for six months. THE two convicted persons have not preferred the appeal out of the three and the appeal has been preferred by the present appellant alone to challenge the conviction and sentence inflicted upon him.

(3.) AS regards the first search and recovery of different purias of smack from the possession of three different accused persons including present appellant, it could be said that the evidence on that part of the prosecution case is completely inadmissible. The non compliance of section 50 of the Act has been held making the evidence on search and seizure inadmissible and, as such, the conviction on the basis of such evidence could not be sustained. This court's one decision among others, in the case of Aklu Mian Vs. State of Bihar reported in 2011 (1) BLJ 250 could be referred to for seeking support in recording the above view. Likewise, in view of the provisions of sections 41, 42 and 43 besides that of section 55 of the Act, it is required by law that just after the recovery of any narcotic drugs or psychotropic substance, the possession thereof has to be transferred by the officer making the recovery to the Officer Incharge of the police station within whose jurisdiction the offence has been detected. Thereafter, the Officer Incharge has to make an entry about the receipt of the substance into the malkhana register and the whole recovered article has to be put under the seals of both the Officer-In-charge and the officer who had recovered it. There is absolutely no evidence on record of the present case that the above mandatory provisions of the Act on search and sealing of the recovered article has been complied with. What appears as the next defect in the prosecution case is that as regards the sending of the sampled substance for chemical analysis to the Forensic Science Laboratory, the sampling has to be done in presence of the officer who had recovered it and the officer-in-charge who had received the possession of the article. The law requires that the two officers shall have to put their own personal seals over the packet so as to secure its genuineness. The purpose for doing so was to identify the contraband which was really recovered and seized. In the aforesaid decision rendered in the case of Aklu Mian (supra), it was pointed out that it was very sacrosanct as may appear from paragraph 14 of the report which deals with the above part on compliance of the statutory provisions. It was pointed out in that connection that the purpose of putting down these stringent provisions in the Act was simply to obviate any tampering or manipulation in the seized article so that the accused could not get unduly harassed by being inflicted some harsher sentence. The evidence on the above part of compliance of law, as I have just now pointed out, is completely absent. Thus, even if accepted that the statement of the appellant had led to the recovery of 14 purias of smack, the recovery could not be accepted in absence of the other parts of non compliance of law leading into the case suffering from incurable legal defect.