SHYAM BABU SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present Appeal under Section 374(2) read with Section 389(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C.") was preferred against the judgment of conviction and sentence passed in N.D.P.S. Case No. 29/21 of 2012/2015 (arising out of Raxaul P.S. Case No. 46 of 2012) passed by Shri Krishna Bihari Pandey, learned 3rd Additional Sessions Judge - cum - Special Judge, East Champaran, Motihari (hereinafter referred to as the "trial judge"). By the judgment dated 16.07.2015 the appellant has been convicted for commission of offence under Section 20(b)ii(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "N.D.P.S. Act") and by order of sentence dated: 23.07.2015 he has been directed to undergo rigorous imprisonment for twelve years with a fine of Rs. 1,25,000/- and in default of payment of fine amount, he has further been directed to undergo simple imprisonment for six months.

(2.) Short fact of the prosecution case is that on 06.03.2012 one Shri Ashok Kumar Singh, Probationer Sub Inspector of Police Raxaul Police Station, East Champaran submitted a written report to the Police Inspector -cum- Officer -In-Charge of Raxaul Police Station disclosing therein that on 06.03.2012 while he was in Police Station at about 11.00 A.M. he got secret information that in the village Gamhariya Shyam Babu Singh (appellant) had illegally concealed Ganja and Shyam Babu Singh ( appellant) was deeply involved with other 2-3 accused persons and he was trying to sale the said Ganja. To get the said information verified and taking necessary action, he along with probationer Sub Inspector of Police Amitesh (P.W.3), Probationer Sub Inspector of Police Dinesh Kumar Das (P.W.1) and Constable - Md. Bhuto (P.W. 2) proceeded for village Gamhariya through Government vehicle. On arrival in Gamhariya village near the house of Shyam Babu Singh (appellant ) in presence of two local independent witnesses namely: Dwarika Sah (not examined) and Birjeet Sah (not examined) following the procedure of search, searched double storied building of the appellant and in the said search on the ground floor he noticed that illegal Ganja wrapped in 10 big packets and 3 small packets were concealed in straw. He claimed that in presence of the said two independent witnesses he taken weight of the seized Ganja by weighing machine and on weighing it was found that bag of 10 bags were having 20 Kilograms of Ganja each and small bags were containing 10 Kilograms of Ganja each and on weighing total Ganja was about 230 Kilograms. After preparing seizure list in presence of two independent witnesses he obtained the signature of independent witnesses who voluntarily signed and thereafter he handed over one copy of the seizure list to the appellant. The appellant /Shyam Babu Singh was arrested and after arresting accused -Shyam Babu Singh (appellant) he was interrogated. In interrogation he disclosed that along with Farukh Ahmed, Abbas Mian and Suresh Yadav in the morning on the same day had brought illegal Ganja from Nepal which was concealed by him. The informant in its written report further stated that arrested Shyam Babu Singh (appellant) disclosed that other three persons had gone to Gamhariya market with a view to contact merchant for sale of the seized Ganja. On the basis of information provided by the apprehended person (appellant ) the informant with the raiding party went to Gamhariya Bazar where he saw that all the three persons were sitting on Chowk near the temple and after noticing police party they started fleeing away. However, after chase, all the three persons were arrested and on interrogation they disclosed their name as: Farukh Ahmed, Abbas Mian and Suresh Yadav. The informant claimed that all the three apprehended accused persons accepted before him that in the morning with the appellant they had brought the said illegal Ganja from Nepal and it was concealed in the house of the appellant. Thereafter, besides the appellant the aforesaid three persons were also arrested. On the basis of the said written information given by Sri Ashok Kumar Singh, a formal F.I.R. vide Raxaul P.S. Case No. 46 of 2012 was drawn on 06.03.2012 at 15.00 Hours ( 3.00 P.M.) for the offence under Sections 20/22/23/24 of the N.D.P.S. Act against the four accused persons namely :-

(3.) Sri Shri Prakash Tiwari, learned counsel for the appellant after placing entire evidences i.e. both oral and documentary evidences has argued that the learned trial judge though after noticing the fact that in the case the prosecution had not examined seizure list witnesses, who were independent witnesses, has proceeded on the basis of evidence of only the official witnesses and has passed the judgment of conviction. It has been argued that during evidence the then investigating officer /P.W. 5 has admitted that he had not taken sample from the seized Ganja and it was case of violation of Section 42 as well as Section 52A of the N.D.P.S. Act , however, the learned trial judge ignoring all those infirmities has passed order of conviction and sentence, which is required to be interfered with. It has been argued that the appellant due to the reasons best known to the prosecution was falsely implicated in the present case showing as if the appellant had concealed huge quantity of Ganja to the tune of 230 Kilograms, however, during trial the prosecution has not produced the seized Ganja which was fatal for the prosecution case. Shri Tiwari, learned counsel for the appellant has placed heavy reliance on a recent judgment of the Hon'ble Supreme Court (Gorakh Nath Prasad vs. State of Bihar,2017 SCCOnLine 1505 (SC)). He has specifically referred to paragraph nos. 6 and 7 of the said judgment of the Supreme Court and it has been argued that the judgment of conviction and sentence may be set aside.