RANJEET RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole appellant has been convicted under Section 21(b) of the Narcotic Drugs and Psychotropic Substance Act, (in short the Act) and has been sentenced to undergo rigorous imprisonment for 7 years with a fine of Rs. 50,000/- and in default he is ordered to further undergo rigorous imprisonment for 6 months.

(2.) THE prosecution story, as disclosed in self statement of Inspector Piranjeet Singh, is that on receipt of the memo of the Superintendent of Police on that day of occurrence he constituted a raiding party and proceeded for conducting checking of the vehicle on Buxar Sasaram road near Shiv Temple in village-Malah Chakia. Further story is that the Superintendent of Police, Buxar had authorised the informant under Section 41(2) of the Act to conduct the raid. As per the message of the Superintendent Buxar two persons after purchasing Heroin from the appellant Ranjeet Rai of village-Sarenja were to come on a motor cycle towards Buxar. Out of whom one was a lame person. THE informant alongwith others were checking the vehicle at about 15 hours, he saw two persons on a motor cycle having registration No. U.P. 60 C-8489. But on seeing the police the person who was pillion rider escaped while the other person who was lame driving the motor cycle was caught. In presence of two witnesses, namely, Md. Azad and Laxman Soni searched of the person was done. He disclosed his name to be Mahendra Pathak (Co-accused not the appellant). He also disclosed that the pillion rider was Santosh Tiwary of village-Ekauni, P.S. Charpokhari, District-Bhojpur, his brother-in-law. After fulfilling the formalities he made search on Mahendra Pathak and recovered a polythene packet containing brown colour powdery substance which he disclosed that the same was Heroin purchased from the appellant. He also disclosed that the appellant alongwith his brother used to manufacture Heroin in his own house which is sold by him and some other persons. He further disclosed that appellant was also to arrive soon on his Maruti Car with Heroin for selling the saem to other persons. THE brown power recovered from the co-accused Mehendra Pathak was duly seized and samples were made. After making seizure list suddenly at about 16 hours (another motor cycle without any number came and on seeing the police party the person riding on the motor cycle attempted to flee away but was also apprehended. He disclosed his name to be Braj Mohan Rai. While he was being interrogated the Maruti Car No. UP 60E 3684 also came which was stopped. THE person, driving the car disclosed his name as appellant, Ranjeet Rai. THE informant shown him the authorisation memo of Superintendent of Police, Buxar and also disclosed him that 50 gram of Heroin had been recovered from the possession of Mahendra Pathak. He also informed him that he wanted to search his car and his person. He also gave him option that whether he wants to be searched in presence of Gazetted Officer or a Magistrate. Upon it the appellant, Ranjeet Rai gave him in writing that they can search him in presence of the witnesses and he was not willing to go to a Magistrate or a Gazetted Officer. On being search in presence of witness a polythene packet containing brown colour power was recovered which was weighed to be 50 grams. THE samples were taken and sealed with the signature of witness arid were properly sealed. It has been further alleged that a rifle, life cartridges and a mobile phone were also recovered from his possession. Seizure, list was prepared on which appellant, Ranjeet Rai, put his signature beside the witnesses. THE Superintendent of Police, Buxar was also informed about the arrest of the appellant and recovery of contraband articles. On his statement a formal F.I.R. was lodged. THE case was investigated. THE article so seized was handed over to the I.O. which was kept properly in Malkhana. THE specimen sample of the seized articles were sent to Forensic Science Laboratory for examination. THE I.O. submitted charge sheet after the investigation. THEreafter the cognizance was taken and trial was concluded with the result as indicated above.

(3.) IT was further submitted that in case of Narcotic Drugs the court should be very specific that there should be a proof link between the seizure making of samples and sending it for chemical examination to ensure that the substance which has been actually recovered and seized has actually been sent for chemical examination. There should be no doubt and there should be no lacuna in any link so mentioned. IT was pointed but that there are catena of judgment on this point in which it was held that any missing link would discard the case of the prosecution. Since there is severe punishment in these cases and the court must see that all the mandatory provisions have been strictly complied with. The learned Counsel has also pointed out that apart from these lacuna in the prosecution case the alleged recovery is of 50 gram of Narcotic Substance is much less than the commercial quantity notified in government circular. As per the circular 150 gram is said to commercial quantity for Heroin and it is alleged that only 50 gram of Heroin has been alleged to have been recovered from the possession of the appellant. Not only that the quantity so recovered has been properly weighed or not is also doubtful which would be apparent from the deposition of P.W. 4 who admitted that he has taken the weight of the sample but weight of sample was not mentioned nor weight of remanent was mentioned by him. Even P.W.8 has admitted that weight of the sample was not mentioned in forwarding letter. These all shows that there is no proper proof of quantity of seized Heroin and even it was recovered as alleged, it was in very small quantity and for that quantity of recovery sentence of 7 years is too much compared to maximum sentence under this provision being 10 years of rigorous imprisonment. IT was lastly submitted that the appellant has remained in jail for last 2 1/2 years, he deserves leniency while awarding sentence.