Tuesday, April 16, 2024

Justice Ashwani Kumar Singh sets aside conviction judgement under NDPS Act by 4th Additional District and Sessions Judge, West Champaran

In Pintu Bhagat vs. State of Bihar, Justice Ashwani Kumar Singh of Patna High Court set aside the judgment of conviction dated June 15, 2010 and the order of sentence dated June 23, 2010 passed by the 4th Additional District and Sessions Judge, West Champaran at Bettiah in Tr. No. 15 of 2008, arising out of Kangli P.S. Case No. 25 of 2007. The judgement of the High Court was passed on July 27, 2015. 

The appellant was convicted for the offences punishable under Sections 20(b)(ii) (C), 22(b) and 23(b) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lakh for each of the offences and in default thereof to undergo simple imprisonment for two years for each of the offences. The sentences awarded against the appellant were ordered to run concurrently.

The Court noted that the seized drugs were neither sealed nor sample taken on the date of seizure. 25 packets were alleged to have been seized while sample was taken from only 01 packet. Seized articles were not weighed and there was discrepancy in the statement of the witnesses regarding sending of sealed articles to the Police station. Photograph of the drugs were not taken nor representative sample was drawn in presence of any magistrate. Keeping the seized articles in unsealed condition for over a month, taking substances out of it in absence of accused or any independent witness for sampling and sealing of the sample by general seal create suspicion of tampering. The procedure laid down under Sections 52, 55 and 57 were not followed. 

Justice Singh concluded: "I am constrained to say that the investigation in this case is perfunctory and on important aspects of the matter the evidence is highly discrepant and unconvincing. Therefore, the evidence adduced is wholly insufficient to believe that any article was ever seized from the possession of the appellant and, if seized, the same were charas."

The case was registered on December 28, 2007 in respect of an occurrence which took place in the night intervening between 27.12.2007 and 28.12.2007 on the basis of a written report submitted by one Raghunath Bori to the Officer-in-charge of Kangli Police Station. In the night on December 27, 2007 at Sikta Indo-Nepal Border near the old canal, which is 1.5 km away from Border Pillar No. 407 of village-Kathiya Mathiya, at about 11 p.m. in the night, seven persons were seen coming from the Nepal side carrying hand bags. On suspicion, when he asked to stop, they started running away. While running away, four of them fell down. It is further stated that the miscreants started firing on SSB Personnel. The SSB Personnel also took position and overpowered one of the miscreants, but other miscreants managed to escape taking advantage of dense fog and darkness of night. On inquiry, he disclosed his name as PintuBhagat, the appellant. On search of the bag recovered from the appellant, 25 packets of charas, each containing about 500 gm, wrapped in plastic covers, which were further kept in a gunny bag and further in a hand bag were recovered. 

On receipt of the written report of the informant, Kangli P.S. Case No. 25 of 2007 was registered on December 28, 2007 at 1.10 p.m. under Sections 21, 22, 23 of the NDPS Act and 27 of the Arms Act by the Station House Officer, Surendra Ram, who took up investigation of the case himself.

After holding the trial and hearing the parties, the trial Judge convicted and sentenced the appellant. The counsel for the appellant submitted that the trial Court did not appreciate the evidences led on behalf of the prosecution in correct perspective. The contraband articles seized in the case were never produced before the Court. Even the Malkhana register was not produced during trial in order to prove safe custody of the contraband alleged to have been seized from the possession of the appellant. The chemical examiner, who issued the FSL report, was not examined during trial. The seizure list was neither prepared
at the spot nor the articles recovered were ever sealed in presence of the appellant. Even according to the prosecution case, sample was taken from only from one packet out of the 25 packets of contraband said to have been seized from possession of the appellant. It is not known from which packet the sample was taken. Hence, it cannot be said what were the contents of the other 24 packets which were neither produced before the court during trial nor any sample was drawn from them. There is no evidence that the contraband seized was ever weighed. The trial of the appellant was vitiated for total non-compliance of Sections 42, 52-A, 55 and 57 of the Act.

The Court observed that "From the record, it is clear that the seized articles were neither sealed nor sample was drawn on the date of seizure i.e. 27.12.2007. Even on 28.12.2007 when the seized articles were produced before the Surendra Ram, they were neither sealed nor were sample drawn in presence of the accused. The S.H.O., Surendra Ram (P.W. 9), has deposed that he kept the seized articles in the Malkhana of the police station but he has not stated that they were kept in the Malkhana in sealed condition. The Malkhana register was not produced in court in order to show the date of entry of the seized contraband in the Malkhana. The S.H.O., Kangli deposed that sample was drawn from one of the packets and it was properly sealed before sending it to the Forensic Science Laboratory, but it would appear from the record that the production-cum-seizure memo did not carry any seal impression."

The Court noted that "according to the prosecution case, 25 packets were recovered. It is an admitted case of prosecution that sample was taken from only one packet. Why the sample could not be taken from the other packets alleged to be seized has neither been stated nor been explained by the prosecution during trial."

The Court found that from the record that the charge sheet in the case was submitted on February 25, 2008 and the FSL report was received in the court almost two years thereafter on February 8, 2010. It was taken into evidence by the trial court under Section 293 of the Code. A copy of the FSL report was never supplied to the accused. A perusal of the report would demonstrate that the tin dibba sent to the FSL contained pieces of dark brown solid rectangular shaped substances. The dark brown solid rectangular substances contained in tin dibba were found to be charas containing Tetra Hydro Cannabin (T.H.C.). The report further describes that Tetra Hydro Cannabin is chief intoxicating ingredient of charas.

The order record that "There is no cogent evidence that the seized articles were ever weighed, as no balance and weight were used to weigh the articles. Even the weight of the sample sent to the FSL has not been disclosed by the informant in the deposition. The FSL report (Ext. 6) does not indicate the weight of the sample sent to the FSL. The remnants of the sample were not sent back. What happened to the 24 packets seized from the appellant is not known; what happened to the packet from which sample was drawn is also a mystery." The Court doubted the veracity of the prosecution case.

Justice Singh observed that "I find substance in the argument advanced by the learned counsel for the appellant that the provisions prescribed under Sections 52, 55 and 57 of the NDPS Act have not been followed by the investigating agency in the present case. It would be evident from a reading of Section 55 of the NDPS Act together with Section 52(3) of the NDPS Act that it is the officer-in-charge of the police station who takes charge of the person arrested as also the article seized and supervise the proceedings. He has to seal the contraband articles with his own seal, and then get them deposited at the police station for the safe custody either himself or through some officer, and in that event allow that officer to put his seal also on the packets sealed with his seal. There is no evidence that the S.H.O. of Kangli Police Station had ever put his seal on the seized articles or on the sample sent to the FSL. Though the S.H.O. has stated in his deposition that the same was sealed, there is no evidence whose seal was put on the sample."

He further observed that "In my opinion, the legislature had never contemplated that articles or samples recovered under the provisions of the NDPS Act would be kept unsealed, or they would be sealed with general seal. It would be evident from the record that the sample alleged to have been sent to the FSL had not been sent with any special seal."

The Court noted that Section 52-A of the NDPS Act comes into play after recovery of the contraband item. Justice Singh found that "photographs of the drugs or substances so seized were never taken. Even, the representative sample was not drawn in presence of any Magistrate. The seized charas was never produced in the court. There is no evidence to show that seized articles were kept in safe custody in the police station. In absence of any inventory, the photographs of the charas and any list of samples drawn under Sub-section (2) of Section 52-A and certified by the Magistrate, it would be difficult for the court to place reliance on the prosecution case regarding recovery of charas. The entire action of the prosecution in conducting the search, seizure, sampling etc. is contrary to the mandate of law. What is curious to note in the present case is that the guidelines given in the Act under Sections 52(3), 52(4) and 55 of the NDPS Act have been given a complete go-bye by the investigating agency. Further, Section 57 of the NDPS Act relates to reporting of arrest and seizure to immediate superior officer. The evidence shows that the same has not been done."

It emerges that the procedural errors on the part of the prosecution proved fatal to their case. 

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