SULEMAN SAIN Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is against the judgment dated 7.5.2004/ 10.5.2004 of the 5th Additional Sessions Judge, Sasaram passed in Kargahar P.S. Case No. 101/91 whereby the appellant has been convicted under Secion 22 of the N.D.P.S.Act. 1985 (hereinafter referred to as the Act) and sentenced to R.I. for ten years and a fine of Rs.1 lakh and in default of payment of fine to undergo S.I. for one year.

(2.) The prosecution commenced with the written report signed by the informant Asgar Ali as filed before the officer-in-charge. Karghar P.S. with the allegation that the appellant Suleman Sain was making noise and nuisance in Kargahar Bazar after consuming heroin and that he was apprehended by the informant with the assistance of people of the locality and then he was produced at the police station and that one polythene containing heroin was recovered from his pocket. The further case of proseuction is that the appellant was searched at the police station and the heroin kept in a paper, wrapped in polythene was recovered from his pocket. Seizure list (Ext.1) was prepared in presence of witnesses. Haridwar Singh (P.W. 1) and Aurangjeb (not examined) as well as the informant (P.W. 3). The prosecution story also appears to be like this that the seized heroin was sent for chemical examination. The attested copy of the report received from FSL. Bihar, Patna was put on the record as (Ext. 3) which mentions that the sample contained was found to be heroin.

(3.) As many as three witnesses were examined by prosecution. P.W. 1 Haridwar Singh is a seizure witness and he deposed that at the relevant time of occurrence one Puria containing heroin was recovered from the pocket of the appellant at bus stand Kargahar. This witness also says that the seizure list was prepared at the bus stand itself towards North of the place of recovery where there was a temple and thereafter a block office. He also deposed that the C.O.,B.D.O. or doctor of the block were not present there at the time of recovery. Thus according to this witness the Puria containing heroin was recovered from the possession of the appellant at the bus stand, Kargahar and that seizure list was also prepared at the bus stand itself. Learned counsel appearing as amicus curiea for the appellant referred the seizure list(Ext. 1) which mentions place of seizure at Kargahar P.S. and the seizure list is in the writing of A.S.I. i.e. a police officer. Thus, according to the seizure list recovery was made at the P.S. and the seizure list was also prepared by the police officer at the police station. But there is a material contradiction in view of the place of recovery as according to the evidence of the P.W.1 the recovery was made at the bus stand and the seizure list was also prepared there.