SHESH NARAYAN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole appellant has been convicted under Section 20(B)(1) of the Narcotic Drugs and Psychotropic Substance Act, (in short the Act) and has been sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/- and in default further sentenced to undergo rigorous imprisonment for six months.

(2.) THE story of the prosecution as has been stated in the written report of Raghubansh Kumar Bhanu, Jr. S.I. is that on 10.1.1997 while he was busy with some investigation and checking he got a confidential information that a person wearing military coloured jacket was carrying Ganja at Patel bus stand. He alongwith constable Prithvi Prasad went to Patel bus stand. THEre they found that the appellant was wearing military coloured jacket and also carrying a military coloured bag. He started fleeing away after seeing them. THEy apprehended him after chasing. He disclosed his name as Shesh Narayan Singh. His search was conducted in front of independent witnesses, namely, Asha Purna Singh (P.W.2) and Ramesh Kumar Singh (P.W.1) after following the rules. On search about 6 Kg. of Ganja covered in black colour polythene packet was recovered from his bag. A Seizure List was prepared for that and on which the witnesses put their signature. A copy of the Seizure List was also given to the appellant. On enquiry he could not show any letter or paper authorizing him to keep the Ganja contraband. THE appellant thereafter, was taken into custody. On the statement of informant P.Ws. a case was registered under Section 20(B) of the Act and also under Section 48A of the Excise Act against appellant. After investigation the charge sheet was submitted and the court after holding the trial found the appellant guilty and sentenced him as has already been mentioned.

(3.) LEARNED Counsel for the appellant has submitted that the independent witnesses have clearly stated that nothing has been recovered in their presence. As such there is nothing on record to show that there is witness to prove the time and recovery of Ganja as per prosecution story. It has also been submitted that the only constable has also not supported that the recovery of contraband made from the physical possession of the appellant rather he has stated that the Attachee case was kept at a place which was taken to the police station and at the police station the Attachee was opened from which the recovery of Ganja was made. He has also specifically stated that when the appellant was apprehended he was not having it and the attachee case was kept 35 feet away from where he was apprehended. He has further submitted that they did not see themselves that Attachee was kept by fleeing appellant. His statement contradicts the statement of P.W.5 the informant so even the police witnesses have given contradictory version about recovery and the same should not be relied upon. It was also submitted that in this case the prosecution could not prove whether the article which was recovered was actually Ganja or not. Neither any report was obtained or placed before the court nor the seized article was ever produced before the court to prove it. As such the prosecution has badly failed to prove the recovery of Ganja. He further submitted that provisions of Sections 55 and 57 of the Act has not been complied with. There is nothing on record to show that the articles so seized was handed over to the Officer Incharge and has been kept in safe custody in Malkhana. He has further submitted that there is no entry in Malkhana register about this seizure and P.W.5 is silent about the article. He has relied on a decision reported in (2005) (4) East Cr.C. 398 (Pat) Lakhvindar Singh and Ors. v. The State of Bihar in which it was held that if the provisions of Sections 55 and 57 of the Act is not complied with strictly it cast serious doubt on the proper handling of the case since these sections are mandatory and in such case the accused is entitled to get benefit of doubt. The provision of these sections deals with for keeping the seized article in safe custody so as there could be no chance of adulteration in it for the purpose of false implication of an innocent person, as such it has been provided under this section that the material so seized shall be properly covered and sealed in presence of independent witnesses and should be handed to Malkhana of the police station immediately after the preparation of the seizure list. It also deals with preparation of sample which should also be sealed with the seal of the Officer Incharge of the police station alongwith the signature of the independent witnesses should be there so as there is no doubt that the sample which has been taken was from the same lot of the Ganja which was seized from an accused. Section 57 deals with immediate information and report about the seizure and arrest to the Superior Officer which also prevents the I.O. from muddling for the investigation with ulterior motive. In such cases of offence under this Act severe punishment has been provided. As such court is also very particular about rigorous implication of sampling so as no innocent person could be falsely implicated and be put to such harassment at the hands of the investigating agency. On the strict compliance of Section 57 of the Act the learned Counsel has relied on a decision Gurbax Singh v. State of Haryana in which it was held that if the provision Sections 55 and 57 of the Act has not been complied and there is no evidence to support it, it would not be safe to convict the appellant for such a serious offence which is having such severe punishment.