PRAMOD SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is against the judgment dated 19.7.04/20.7.04 of the Special Judge, Madhepura passed in G.R. Case No. 540 of 01 (arising out of Bihariganj PS. Case No. 23/01), whereby the appellant has been convicted under Sec.20 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to undergo R.I. for five years and a fine of Rs. 10,000.00 and in default of payment of fine to undergo R.I. for six months.

(2.) MD . Alim Akhtar, S.I., the then, officer -in -charge, Bihariganj RS. is the informant of the case. The prosecution case is that the informant, comprising patrolling party of S.N. Singh, A.S.I., (RW. 3), constables Laldeo Singh, Rajendra Rai and Sunjay Kumar Singh (respectively RWs. 4, 5 and 6) and Ram Prakash Singh and Jamshed Alam, constables (not examined) was proceeding for conducting a raid on criminals and that when the patrolling party reached in village Permanandpur at about 8 P.M. on 11.7.2005, the appellant was seen coming out from bamboo grove. Seeing the police party he started fleeing away but he was chased and apprehended by the police party and a gunny bag was recovered from his possession and on opening the gunny bag Ganja weighing one and half kg. was recovered from it. A seizure list in presence of the public witnesses Ram Bilash Yadav (P.W.1) and Shankar Kumar (RW. 2) was prepared and the witnesses signed on the seizure list and a copy of the seizure list was also furnished to the appellant. On completion of investigation charge -sheet was submitted and the appellant was put on trial and he has been convicted and sentenced by the trial court as above.

(3.) RW . 1, deposed in his examination -in -chief that any Ganja was not recovered nor the appellant was apprehended in his presence and he identified his signature (Ext. 1) on the seizure list. But he stated in his cross -examination that his signature was obtained at the RS. and that he had not read the seizure list before signing the same. RW. 2 also deposed that he was taking tea to the P. S. and that while he came to P.S. Darogaji had obtained his signature (Ext. 1/1) on the seizure list. In his cross -examination, he deposed that nobody had been arrested in his presence and that he had signed on the seizure list without reading the same on being asked by the Darogaji. These two hostile witnesses have been cross -examined by the A.P.P. and their attention have been drawn towards their previous police statement that the appellant was apprehended in their presence and that recovery of Ganja was also made in their presence but both these witnesses denied to have made any such police statement supporting the case of prosecution. It has to be mentioned here that the I.O. of the case was not examined by the prosecution to prove the police statement towards which the attention of these two witnesses were drawn by the prosecution. Therefore, there is nothing on record to presume that these two witnesses had given any police statement supporting of the case of prosecution. Thus, the evidence of these two witnesses remain intact and these two witnesses have deposed before the trial court stating that the appellant was not apprehended nor recovery was made in their presence. No doubt, these two witnesses have signed on the seizure list but they have stated that Darogaji had obtained their signature at the RS.