MD. KHALIK Vs. UNION OF INDIA

JUDGEMENT

(1.) Criminal Appeal (DB) No.1139 of 2016 has been filed by accused no.3 Md. Khalik, Criminal Appeal (DB) No.1147 of 2016 has been filed by accused no.2 Md. Furkan whereas Criminal Appeal (DB) No.1060 of 2016 has been filed by accused no.1 Md. Jamir Alam Ali. By these appeals, they are challenging the Judgment and Order dtd. 15/9/2016 and 21/9/2016 respectively passed by the learned Additional Sessions Judge-VII, Patna, in Special Case No.15 of 2014 thereby convicting them of offences punishable under Ss. 21(c), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "N.D.P.S. Act"). On first two counts, they all are separately sentenced to suffer rigorous imprisonment for 12 years by each of them apart from payment of fine of Rs.1,00,000.00 and in default, to undergo three years of default sentence by each of them. On third count, i.e., for the offence punishable under Sec. 29 of the N.D.P.S. Act, they all are sentenced to suffer rigorous imprisonment for 5 years. Substantive sentences are directed to run concurrently by the learned trial court. As all these appeals are arising out of the same Judgment and Order, they are being decided by this common Judgment. For the sake of convenience, the appellants/ convicted accused shall be referred to in their original capacity as "an accused".

(2.) Facts leading to the prosecution of the accused persons can be summarized thus:

(3.) We heard the learned counsel appearing for the appellants at sufficient length of time. He argued that though two Panches, namely, Arvind Kumar and Sudhir Kumar had allegedly witnessed the search and seizure of Heroin, the prosecution has not examined them and the case of the prosecution is based on interested testimony of the official witnesses. It is further argued that the seized contraband was not produced in the trial court and, therefore, the case of the prosecution is rendered suspect. To buttress, this submission, reliance is placed on the Judgment dated 28th and 29/9/2017 passed in Criminal Appeal No.708 of 2010 Premsingh Hijarilal Jaiswal V/s. The State of Maharashtra by the Bombay High Court. It was further argued that even the samples drawn by the learned Judicial Magistrate were not produced in the court. The learned counsel for the appellants vehemently argued that there is total non compliance of provisions of Sec. 313 of the Code of Criminal Procedure. The questions which ought to have been put to the accused for seeking their explanation for basing the conviction on the evidence adduced by the prosecution were not put to them and thereby the entire trial is vitiated. It is submitted that as the relevant circumstances were not put to the accused persons those are required to be kept out of consideration and if it is done so, then no evidence remains against the accused persons. To buttress this submission, reliance is also placed on the Judgment of the Division Bench of this Court in the matter of Jagat Prasad Vs. The State of Bihar and Anr., reported in 2022(1) PLJR 568.