SURESH BHAGAT Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal has been filed on half of sole appellant Suresh Bhagat who has been convicted of an offence under Section 23 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter to be referred to as the 'Act '), by an order dated 28th September 1996 passed by the 5th Additional Sessions Judge, East Champaran, Motihari in Excise Case No. 102 of 1995, Trial No.6 of 1996. The appellant has also been sentenced to undergo R.I. for 12 years and also to pay a fine of Rs.1,00,000/ - (Rupees one lac) and, in default, to undergo R.I. for three years by an order dated 1st October, 1996.

(2.) THE prosecution story, in short, is like this: On 18th October 1995, the Officer Incharge of Chhatauni Police Station, within the district of East Champaran, received a confidential information at 12.30 P.M. that one person was found moving in the local bus stand in order to board some bus and he was holding a Jhola with him. On the basis of this information, the Officer In -charge recorded a Station Diary No.289 of the date and he proceeded for the Govt. bus stand along with Sub -Inspector J.N.Pandey and constable No.711 Ravindra Kumar Singh and Constable No.766 Srikant Rajak for verification of the information. When the Police party arrived at the bus stand, it located a person holding a Jhola in his hand trying to escape, as he saw the police party. He was caught with the help of the associates by the Officer In -charge and his person was searched in presence of two Independent witnesses, namely, Ramadhar Thakur and Lakshmi Prasad. When the Jhola, found in possession of the said person, was searched, two plastic packets were recovered from inside the Jhola in which two kgs. of Charas was recovered. The cost of material was about Rs. 80,000/ -. The Police Officer prepared a seizure list in presence of witnesses and on enquiry, the said person disclosed his name to be Suresh Bhagat. He could not explain the possession of the article recovered from his Jhola. Accordingly, he was arrested and brought to the Police Station where the case was registered u/s 20(b)(ii) of the Act and the investigation was entrusted to S.I. J.N. Pandey (P.W.2) who conducted the investigation in the case and, on completing the formalities, he submitted charge sheet on the basis of which, cognizance was taken and the case was tried by the 5th Addl. Sessions Judge, East Champaran at Motihari and the judgment and order under appeal were passed. The defence of the accused in the case was a complete denial of allegation. It was denied that the Jhola in question was recovered from his possession and it was alleged that he was caught on suspicion under some confusion.

(3.) THE Investigating Officer of this case, P.W.2 Jagat Narayan Pandey, also happened to be present at the time of alleged search and seizure and it does not appear to be proper that a person who was himself witness of the occurrence was entrusted with the investigation of the case. However, he has tried to support the prosecution story in his evidence in court, but so far as the question of taking sample and sending the same to the expert is concerned, he has admitted in his cross -examination that the sample was not taken in presence of any witness and the accused was also not present at that time. It is also significant to note that whereas the seizure was made on 18th October 1995, the sample was taken on 23rd December, 1995, i.e. more than two months after the recovery. Therefore, the manner of taking of sample and sending the same to the expert has also been challenged by the defence in this case.