BRIJ KISHORE YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE batch of four appeals arise out of the judgment dated 25.7.2009 passed by the learned 5th Additional Sessions Judge-cum-Special Judge, Muzaffarpur, in D.R.I. Case No. 14 of 2004. By the above judgment all the four appellants, one each in the four appeals, was found guilty of committing offences under Section 2(b)(i)(c) of the Narcotic Drugs and Psychotropic Substances Act ( the Act for short) and after being heard on sentence on 30.7.2009 each of the appellants was directed to suffer rigorous imprisonment for ten years as also to pay a fine of rupees one lac and in default of paying the fine the appellants had to suffer simple imprisonment for one year. THE appellants have preferred separate appeals to challenge their individual convictions.

(2.) THE case is based on the complaint petition filed by P.W.2 Shri R.K.Shrivastava who was the Intelligence Officer of the Directorate of Revenue Intelligence, Muzaffarpur. He had stated in the complaint petition that he had definite information that a Mahindra Jeep without registration number and a Fiat Car were carrying narcotic substance. Accordingly, he intercepted a Mahindra Jeep bearing no registration number and the Fiat Car bearing registration No. BEV-4 along with their drivers, namely, Brij Kishroe Yadav and Mithai Lal, respectively. THE other appellants were also found occupying the seat in the two vehicles. On search of Mahindra Commander Jeep it was found that a cavity was created under false ceiling roof and bottom base from which 43 packets of Ganja weighing 235 K.Gs. was recovered. Likewise, on search of the Fiat Car the complainant recovered 27 packets of Ganja from its rear seat and dickey which was weighed 90 K.Gs. THE search was made in presence of Rakesh Kumar and Ravi Kumar( both not examined) and, accordingly, seizure memo (Ext.2) was prepared. It was duly signed by two public witnesses besides being signed by three appellants, namely, Brij Kishore Yadav, Mithai Lal and Sheoji Rai. THEir confessional statements Exts.3 to 3/b were recorded. As per the contents of the three documents, they were scribed by Surendra Kunar who has also not been examined. THE complainant stated that the recovery memo was prepared in presence of Rakesh Kumar and Ravi Kumar and the same was also signed by the four appellants who put their thumb impressions upon them. THE panchnama, as regards the recovery of narcotic substance as also the vehicles, were also prepared and they were signed by some persons who had associated themselves to Ext.4 the recovery memo.

(3.) SECTION 52(3) of the Act directs that if a person is arrested and an article is seized under sub-section (2) of SECTION 41, SECTIONs 42,43 and 44 of the Act, he shall be forwarded to the Officer-in-charge of the nearest Police Station empowered under SECTION 53 of the Act. Sub-section (4) to SECTION 52 indicates that the Officer who is handed over either any person or article on account of being forwarded to him, shall have to take necessary measures for disposal of the property or person with convenient dispatch. On a conjoint reading of SECTIONs 42 and 55 of the Act what appears is that there could be two classes of Officer-in-charge- one class could be the Officers of departments other than the police department in respect of whom there has to be a special notification to be issued by the Central Government in consultation with the State Government designating such Officer of the other department as Officer-in-charge of the Police Station so as to entering into any premises, building, vehicles, vessels, etc. to make search and seizure. As regards the designated Officers SECTION 42 of the Act itself classifies as to who are the Officers who are authorized to enter into any premises, etc. to make search and seizure but when it comes to disposal of the property after it has been received on transfer from the Officer who had recovered it to the Officer-in-charge of the Police Station, as is indicated by SECTION 52 of the Act, then the mandate of SECTION 53 of the Act is that there must be some authorized Officer appointed to act as aan Officer-in-charge of the Police Station through a proper notification in that behalf which has to be issued by the Central Government in consultation with the State Government.