SARASWATI DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Criminal Appeal (SJ) No.157 of 2015 wherein Saraswati Devi and Nand Kishor Bharti are the appellants, Criminal Appeal (SJ) No. 173 of 2015 wherein Seema Singh is the appellant arise out against the same judgment of conviction dated 21.01.2015 and order of sentence date 28.01.2015 passed by learned Additional Sessions Judge, IVth, West Champaran at Bettiah in Muffasil P.S. Case No.72/2008, Trial No.29/2008 whereby and whereunder all the appellants have been convicted for an offence punishable under Section 20(c) of the NDPS Act and each one has been directed to undergo R.I. for ten years as well as to pay fine appertaining to rupees one lac and in default thereof, to undergo S.I. for one year, additionally, under Section 22(c) of the NDPS Act and each one has been directed to undergo R.I. for ten years, to pay fine appertaining to rupees one lac and in default thereof, to undergo S.I. for one year, additionally, with a further direction to run the sentences concurrently, on account thereof, have been heard together and are being decided by a common judgment.

(2.) Before coming to deal with merit of the case, after hearing respective parties as well as going through the record it is evident that prosecution under NDPS Act happens to be only for the purpose of showing the graph of apprehension of the accused as on account of failure having at the end of the search/seizure authority as well as by the investigating authority times without number in proper compliance of mandatory provisions of law, sermon has been given, relevant provisions have been highlighted so that to be complied with by the authorities at the first instance, how the search, seizure, sampling is to be carried out and in likewise manner, conduct of the investigating authority with regard to storage, destruction, of the seized articles procurement of FSL report. So far facts of the instant appeal is concerned, it is evident that irrespective of recovery of 3 Kg. of heroin from the conscious possession of the appellants Saraswati Devi as well as Seema Singh, there happens to be complete violation at the end of prosecution whereunder physical search which is to be carried out before a Gazetted Officer had not been done and in likewise manner, there happens to be no proper legal recourse at the end of the official concerned in preparing the sample, storage of the same as well as non-production of the sample in court during course of trial make the situation more worsen. Apart from this, there also happens to be violation at the end of the prosecuting agency in getting the matter intimated to the superior officials as required under Section 42(2) of the NDPS Act in consonance with the Section 57 of the NDPS Act. These defects have been pointed out before dealing with the factual aspect so that, the prosecuting agency should take care of at least during course of future activities though previous effort gone unheeded. The Constitution Bench had conclusively decided that no conviction could sustain on account of failure at the end of prosecution. The conduct suggest that the prosecution agency commands unrestricted sphere without having any sort of concern with regard to compliance of mandatory provisions of the law enabling the culprit to have their acquittal on that very score who, by such activity are not only destroying the culture rather future of the country spoiling the youngster by giving an opportunity to become an addict. It is high time and that being so, the anxiety of the court is being expressed over non-sensitization of the prosecuting agency. Accordingly, a copy of the judgment should be forwarded to the learned Advocate General in order to have some sort of administrative activity, to the extent of equipping the police officials with the niceties of the act so that flaw should not erupt during course of investigation as well as during course of trial.

(3.) Now coming to the fact of the case, PW.1 Shailesh Mishra had recorded his self-statement that after being secretarially informed that peddlers are in a way whereupon, a station Diary Entry was made, raiding party was constituted and proceeded towards destination. As per information, they have seen three persons (two ladies and a gent) whose activities were found suspicious and that being so, were apprehended, searched and during course thereof, it has been alleged that from the possession of both the ladies 3 Kg. of Hasis (Charas) were seized. For that, seizure list was prepared, self-statement was recorded which happens to be basis of registration of Bettiah Muffasil P.S. Case No.72/2008 whereupon, investigation commenced and culminated by way of submission of charge sheet, facilitating the trial which ultimately concluded in a manner, subject matter of instant appeal.