Judgment of Additional Sessions Judge, F.T.C-V, Sheikhpura in Section 304(B) case set aside: Justice Sunil Kumar Panwar

In Kaushaliya Devi Vs. State of Bihar, Justice Sunil Kumar Panwar of Patna High Court set aside the judgment of conviction dated December 5, 2006 and order of sentence dated December 7, 2006 passed by Additional Sessions Judge, F.T.C-V, Sheikhpura. The High Court delivered the judgement on May 2, 2024. The benefits of doubt was given to the appellants. The judgement acquitted all the appellants of all the charges. The appellants were on bail all along. They were discharged from the liabilities of the bail bonds.

The appeal was filed against the judgment of conviction and order of sentence passed by Additional Sessions Judge, F.T.C-V, Sheikhpura in connection with Sessions Case No. 404 of 1998 (Trial No. 124/2006), arising out of Barbigha P.S. Case No. 35 of 1997, whereby and whereunder the appellants were found guilty and convicted for the offences punishable under Section 304(B) of the Indian Penal Code (IPC) and they were sentenced to undergo rigorous imprisonment for a period of seven years for the offence punishable under Section 304(B).

Section 304 B deals with "dowry death". It reads: "(1) Where the death of a woman is caused by any burns or bodily injury oroccurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her

husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." 

The prosecution case as per the F.I.R was that the informant Kapil Mahton gave a written information on March 3, 1997 to the effect that his daughter Sushila Devi (deceased) was married with Binod Mahto about three years before the date of filing the present F.I.R. After marriage, all the F.I.R named accused persons started torturing his daughter (deceased) for demand of dowry. She came many times at her parental house and narrated the same to the parents and other family members but every time, matter was consummated with the interventions of the family members of the deceased. It is further alleged that fort night prior to the complaint, the father-in-law of the deceased came to the informant’s house and informed that his daughter had fled away from her matrimonial house. The informant thereafter started searching his daughter and during search, he came to know that a lady about 25 years old had died consuming poison near bus stand. The informant went to the photo- studio shop and identified the photograph of that lady to be his daughter Sushila Devi. The informant alleged that due to torture, his daughter has committed suicide.

The case was registered against the appellants and others under Sections 498(A), 306/34 of the IPC. After completion of the investigation, charge-sheet was submitted and thereafter cognizance was taken and the case was committed to the Court of Sessions for trial.

During the course of trial, altogether twelve witnesses were examined on behalf of the prosecution.

The appellants' counsel submitted that appellants was innocent and they were falsely implicated in this case since they happens to be the mother-in-law and father-in-law of the deceased. The prosecution claimed demand of dowry and torture for non-fulfillment of the dowry demand but they failed to produce any evidence with regard to any torture or demand of dowry prior to the date of occurrence. The informant claimed that soon after the marriage, his daughter was tortured for non-fulfillment of dowry demand but he had not filed any complaint regarding the torture and demand of dowry before any authority nor any panchayati was held in this regard which suggests that a concocted story was implanted to falsely implicate the appellants in this case.

The Court observed that "most of the prosecution witnesses are either highly interested or hearsay witnesses." It also noted that "the prosecution has also failed to prove that the deceased died within seven years of her marriage as the date of marriage has not been mentioned in the F.I.R."

The Court records that "from perusal of the records and on going through the evidences, it appears that none of the prosecution witnesses have seen the occurrence and most of the witnesses are related to the informant and are highly interested witnesses. The prosecution has not brought on record any proof with regard to the torture and demand of dowry prior to the death of the deceased. The husband of the deceased had also not been made accused. Whatever have been stated by the witnesses in their examinations-in-chief was not contradicted in absence of evidence of Investigating Officer. The right of bringing on record the contradictions in the statement of witnesses made before the Investigating Officer is a very valuable right of the accused and by showing that, the witness has made improvements or has given evidence, which contradicts his earlier statement, the accused is able to satisfy the Court that the witness is not reliable witness." 

The Court observed: "It is also pertinent to mention here that in order to establish the offence under Section 304(B) of the Indian Penal Code, the prosecution is obliged to prove that death of a woman is caused by burns or bodily injury or occurs otherwise than normal circumstances and such death occurs within seven years of her marriage and if it is shown that soon before the death she was subjected to cruelty or harassment by her husband or any relative of her husband, such harassment and cruelty must be in connection with any demand of dowry." 

It further observed" "If the prosecution proves the aforesaid circumstances then the presumption under Section 113-B of the Evidence Act will operate. Such presumption is rebuttable and the onus to rebut shifts on the accused persons. It is evident that there is nothing on record to show that soon before the death, there was any demand or torture by the appellants which is a necessary ingredient to bring the accused under Section 304-B of the Indian Penal Code. Section 304-B of the Indian Penal Code clearly says that in case of abnormal death, if it is shown that soon before the death, she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand of dowry, such death can be called dowry death. It is evident from the discussions made that necessary ingredient has not been established by the prosecution to bring the case within the ambit of Section 304-B of the Indian Penal Code." 

The Court pointed out that "If the prosecution fails to establish the aforesaid ingredient then presumption under Section 113-B of the Evidence Act does not apply and in such case the burden does not shift to the accused persons to rebut the presumption under the law. Since the ingredient of Section 304-B is absent on the record, in my view, the appellants cannot be convicted under Section 304-B of the Indian Penal Code."

The judgement concluded that "it is evident that the circumstantial evidence which has been brought on record, as discussed above, is not sufficient to come to a conclusion that the appellants committed dowry death due to non-fulfillment of dowry demand. It is well established rule of law that in case of circumstantial evidence, chain must be complete to establish the guilt of the accused persons. Hence, the prosecution has failed to establish its case beyond the shadow of all reasonable doubts and the appellants are entitled to get the benefits of doubt."

Judgement of Adhoc Additional Sessions Judge, F.T.C.-II, Bhojpur in 1987 case of dacoity set aside: Justice Rajesh Kumar Verma

In Banshidhar Sing Vs. State of Bihar, Justice Rajesh Kumar Verma of Patna High Court set aside the judgement of Adhoc Additional Sessions Judge, F.T.C.-II, Bhojpur.  The appellant was  acquitted from all the charges levelled against him. The Court's direction reads: "Let the appellant be set free at once, if he is not warranted in any other case." In its judgement dated May 6, 2024, the appeal filed by the appellant was allowed. 

It was pending in the High Court since January 2013. It was one of the 26386 are 10 to 20 years old cases pending in the Court. Notably, a division bench of the Court had acquitted 8 convicted persons by judgment dated May 6, 1993 in Jagnarayan Singh and Others Vs. State of Bihar, a related case. The genesis of the both cases was the same. The judgement in the case was delivered exactly 31 years after the acquittal of 8 persons.  In Patna High Court, a total of 3058 cases are over 30 years old,   

The appellant was convicted under Section 396 of the Indian Penal Code (IPC) and was sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.5,000/- by the sentence dated December 18, 2012  trial Court pursuant to the judgment dated December 17, 2012. The prosecution case was that an armed dacoity was committed in the house of the informant situated in village Basantpur, Ara Muffasil, Bhojpur on November 22, 1987 in night. A number of dacoits armed with big Double Barrel Guns, Gun and Small country Pistols broke open the door, entered in the house and looted properties worth Rs. 40,000/. Visheshwar Rai, informant's grandfather told him that his brother Bhola Rai fell down due to bullet shot. Bhola told that “Kameshwar Singh shot fired him". Bhola was shot dead.

Section 396 of IPC deals with "Dacoity with murder" It reads: "If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

The genesis of case lies in the FIR bearing Ara Muffasil P.S.Case No.125 of 1987 which was registered on November 23, 1987 based on the fardbeyan of informant, namely, Ram Dular Yadav against 9 named accused persons including the appellant. The prosecution after completion of investigation, chargesheet against eight accused persons (except the appellant) was submitted on February 23, 1988 which stated that the appellant was as absconder and the cognizance was taken for the offence punishable under Section 396 of Indian Penal Code. The case was committed for split trial by separating the case of this appellant, Yogendra Singh and other suspects against whom the investigation was still going on and accordingly S.Tr.No.436 of 1988 was registered. The 8 accused persons were convicted by the judgment dated March 19, 1990 passed by the 7th A.D.J., Ara and each accused were sentenced to undergo rigorous imprisonment for life. The convicted eight accused persons preferred Cr.Appeal before the Patna High Court vide Cr. Appeal No. 179 of 1990 (D.B.) (Jagnarayan Singh and Others Vs. State of Bihar). The Division Bench of the Court after hearing the parties had acquitted all the 8 convicted persons by allowing the appeal vide order/judgment dated May 6, 1993.

The Investigating Officer filed a petition before the Court concerned to the separate trial on February 23, 1988 for the permission to continue further investigation and the same was accorded by the C.J.M., Ara vide order on the same day. The supplementary Charge-sheet vide Charge-sheet dated November 15, 1989 was submitted under Section 396 of I.P.C. against the appellant. The case was committed for sessions trial. The appellant pleaded his innocence in respect to contents of the charge as framed. The trial of the appellant commenced. The prosecution examined two witnesses. The evidence of the prosecution had been closed on July 20, 2012. The statement of appellant accused was recorded on July 24, 2012 under Section 313. The appellant stated about his innocence and totally denied the allegation regarding alleged occurrence and the appellant adduced the judgment passed by the Division Bench of this Court in Cr.Appeal No. 179 of 1990 arising out from Sessions Trial No. 436/1988.

The appellant's counsel submitted that the defence raised the contention that both examined witnesses are full brother and also interested witnesses, the other witnesses mentioned in the Fardbeyan are not examined, an injured person namely Bhushan Yadav also has not been examined, which casts serious doubt on the prosecution version, Investigating Officer and Doctor of the case are not examined, in absence of medical report, a case U/S 396 of IPC cannot be proved as the cause of death of Bhola Rai has not been proved , the document of the case of Session Trial No. 436/1988 cannot be admissible permissible as evidence in this case, and in Cr. Appeal No. 179/1990. The High Court acquitted the other accused person of this case and also observed that the Fardbeyan is ante-dated, and the identification of the accused person as participants in the alleged dacoity by the eye witnesses who are all of the same family does not inspire confidence, and the entire prosecution came has no leg to stand but the learned trial court gave weightage of the plea as advanced by the prosecution in response to the aforesaid contention of the defence. 

The appellant's counsel submitted that both the witnesses are belonging to same family. The explanation of injury caused to Bhola Rai, Bhushan Yadav and son-in-law of Bhola could not be substantiated by the evidence of the prosecution witnesses and in the facts and circumstances, the investigating officer of the case who had taken part in the investigation and submitted the charge sheets was necessitated for the purpose of corroboration the location and situation of the house of the informant but the Investigating Officer was not examined in the present case and further corroboration in the present case with respect to postmortem of alleged deceased is required, which test amounts the examination of doctor who conducted the postmortem for proper explanation of the injury but the Doctor was not examined in the present case and in view of the aforesaid, the inquest seizure list and postmortem report have not been proved and it would cause prejudice to the appellant.

The counsel for the appellant relied upon the judgment of the Supreme Court in the case of Munna Lal Vs. State of Uttar Pradesh, reported in 2023 SCC OnLine SC 80. The paragraph Nos.-28,39 and 40 of the said judgment reads: 

“28. Before embarking on the exercise of deciding the fate of these appellants, it would be apt to take note of certain principles relevant for a decision on these two appeals. Needless to observe, such principles have evolved over the years and crystallized into ‘settled principles of law’. These are:
(a). Section 134 of Indian Evidence Act, 1872, enshrines the well-recognized maxim that evidence
has to be weighed and not counted. In other words, it is the quality of evidence that matters and not the
quantity. As a sequitur, even in a case of murder, it is not necessary to insist upon a plurality of witnesses
and the oral evidence of a single witness, if found to be reliable and trustworthy, could lead to a
conviction.
(b). Generally speaking, oral testimony may be classified into three categories, viz.:
 (i) Wholly reliable;  (ii) Wholly unreliable; (iii) Neither wholly reliable nor
wholly unreliable. 

The first two category of cases may not pose serious difficulty for the court in arriving at its conclusion(s).
However, in the third category of cases, the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.
(c). A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version.
(d). Non-examination of the Investigating Officer must result in prejudice to the accused; if no prejudice is caused, mere non-examination would not render the prosecution case fatal.

(e). Discrepancies do creep in, when a witness deposes in a natural manner after lapse of some time, and if such discrepancies are comparatively of a minor nature and do not go to the root of the prosecution story, then the same may not be given undue importance.”

The counsel for the appellant pointed out that the genesis of the Cr. Appeal No. 179/1990 which arose from the S.Tr.No. 436 of 1988 (arising out of Ara Muffasil P.S.Case No.125 of 1987)  was the fardbeyan as recorded and upon the same FIR was registered. The genesis of the S.Tr.No.22 of 1990 was the same as the Fardbeyan upon which the same FIR has been registered and the judgment passed in the trial is under challenge in the present Cr. Appeal No. 38/2013. The Division Bench of the High Court held that the said fardbeyan is ante dated and further impeached the credibility of the identification of the named accused in the FIR which also includes this appellant. 

The Court recorded that "the judgment passed in Cr. Appeal No. 179 of 1990 would operate as estoppel in regard all finding which are essential to sustain the judgment and both prosecution witnesses are not trustworthy witnesses and so the prosecution has failed to prove the case beyond reasonable doubt."

Justice Vipul Pancholi led bench sets aside judgement of Additional Sessions Judge, Rosera (Samastipur) in murder case

In Kanchan Kumari v. State of Bihar, the bench of Justices Vipul M. Pancholi and Chandra Shekhar Jha set aside the judgement of Additional Sessions Judge, Rosera (Samastipur) which convicted the appellants Ravindra Kumar @ Lalo and Kanchan Kumari for the offences punishable under Sections 302/34 and 302/120B of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each and in default of payment of fine, the appellants Ravindra Kumar @ Lalo and Kanchan Kumari have to undergo RI for four months. The appellants were also convicted for the offences punishable under Sections 201/34 of the IPC and sentenced to undergo RI for four years and to pay a fine of Rs.2000/- each and in default of payment of fine, the appellants have to undergo RI for one month. All the sentences were to run concurrently. The judgement of the division bench of the High Court was authored by Justice Pancholi was delivered on April 19, 2024.

The informant Binod Kumar gave a written complaint wherein Manoj Kumar (younger brother of the informant) and Mukesh Kumar (brother-in-law of Manoj Kumar) had been living at his house since long. On September 17, 2016, Mukesh Kumar (deceased) received a phone call and went outside. As a dance programme was organized on the occasion of Vishwakarma Puja at Basauna Chowk, the informant did not pay attention as to where he had gone. The informant got information through phone that dead body of Mukesh Kumar is lying in the water beside the road ahead of Utkramit Madhya Vidyalaya, Pakahi. The dead body was brought to Shahpur Chowk.

The written complaint given by the informant had given the names of four accused and also pointed out the motive for committing murder of deceased Mukesh Kumar. 

The judgement of the Patna High Court recorded that it was surprising that after preliminary investigation the investigating agency exonerated the said four persons who were named in the FIR and only on the basis of secret information given by the informer, all the present appellants have been implicated. 

Admittedly, there was no eye witness to the occurrence in question. The case of the prosecution rested on circumstantial evidence. 

Notably, none of the prosecution witnesses deposed against the appellants-accused except the Investigating Officer. None of the prosecution witnesses had seen the appellants lastly in company with the deceased. Even the weapon, i.e., the knife, which was recovered from the house of one of the appellants, was not sent for necessary analysis to FSL. The said aspect is admitted by the Investigating Officer.

The Trial Court had convicted the appellants only relying upon the deposition given by the Investigating Officer. The prosecution failed to complete the chain of circumstance from which it can be established that the appellants have killed the deceased despite which the Trial Court has passed the impugned judgment of conviction and order of sentence. 

The case of the prosecution was that as the deceased Mukesh Kumar was having love affair with one of the appellant Kanchan Kumari, with the help of the other two co-accused the deceased Mukesh Kumar has been killed. However, the prosecution has failed to prove by leading cogent evidence before the Court that Kanchan Kumari, the  appellant was having relation with the deceased. The said aspect has been admitted by the Investigating Officer.

The High Court re-appreciated the entire evidence led by the prosecution before the Trial Court. It would emerge from the record that there is no eye witness to the occurrence in question and case of the prosecution rests on circumstantial evidence. It noted that as per the deposition given by the Investigating Officer, on the basis of secret information given by the informer of the police, it was revealed that the deceased Mukesh Kumar was having love affair with Kanchan Kumari, one of the appellants and all the appellants in connivance with each other killed the deceased. 

The prosecution failed to examine the witness with a view to prove that deceased Mukesh Kumar was
having love affair with Kanchan Kumari, one of the appellants. It emerges that the prosecution failed to prove the motive on the part of the accused to commit the alleged offences. 

Admittedly it is a case of circumstantial evidence. It is well settled that in case of circumstantial evidence, it is the duty of the prosecution to complete the chain of circumstance from which it can be established before the Court that the appellants/accused have committed the alleged offences. 

The he doctor who had conducted post-mortem on the dead body of the deceased found seven injuries out of which six are sharp cut wound. He opined that death was due to hemorrhage and shock caused by above mentioned injuries. He stated that if the knife blow is given, there would be a penetrating wound and he did not find any penetrating wound on the dead body of the deceased. 

The Court observed: "though the Investigating Officer collected the CDR of the concerned mobile phones and produced before the Court, the certification under Section 65B of Evidence Act was not produced before the Court." 

It also observed that "in the case of circumstantial evidence, motive assumes importance. In the present case, as discussed hereinabove, the prosecution has failed to prove the motive on the part of the appellants to kill the deceased by leading cogent evidence before the Trial Court. The medical evidence also does not support the case of the prosecution. Thus, from the aforesaid evidence, it can be said that only on the basis of the confessional statement of the accused and the CDR of the mobile phones, the appellants have been convicted by the Trial Court."

The judgement concluded: "we are of the view that the prosecution has failed to prove the case against the appellants beyond reasonable doubt despite which the Trial Court has passed the impugned judgment of conviction and order of sentence against the appellants. Hence, the same is required to be quashed and set aside." 

The direction of the Court reads: Since appellants, namely, Ravindra Singh @Ravindra Kumar @ Lalo and Kanchan Kumari in Criminal Appeal (DB) No.98 of 2019 and Criminal Appeal (DB) No.291 of 2019 respectively are in jail, they are directed to be released from custody forthwith, if their presence is not required in any other case." It also directed that Bipin Prasad Singh @ Bipin Singh, the appellant, in Criminal Appeal (DB) No.1480 of 2018 who is on bail, is discharged from the liabilities of his bail bonds.

 

High Court sets aside judgement of Additional Sessions Judge-VI-cum-Special Judge, POCSO Act, Nalanda in "a case of a gun-shot marriage"

Patna High Court's bench of Justices Ashutosh Kumar and Jitendra Kumar set aside the judgment and order of conviction by Additional Sessions Judge-VI-cum-Special Judge, POCSO Act, Nalanda and acquitted Prabhas Singh, the appellant of the charges leveled against him. 

The victim had lodged the written report addressed to the Officer-in-Charge of Mahila Police Station, Biharsharif on October 24, 2019, which led to the registration of Mahila P.S. Case No. 175 of 2019 on the same day under Sections 376, 313, 506 and 34 of the I.P.C. and Section 6 of the POCSO Act, 2012. 

Section 376 of IPC provides punishment for rape. The offender is "punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine." 

Section 313 deals with punishment for the offence of "causing miscarriage without woman's consent" . The offender is punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." It is non-bailable and triable by a Court of Session.

Section 506 deals with the punishment for criminal intimidation. The offender is punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 

Section 34 deals with acts done by several persons in furtherance of common intention.

Section 6 of POCSO Act provides" punishment for aggravated penetrative sexual assault". The offencer is punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death. The fine imposed is required to be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

The Court has recorded that "no effort was made by the Investigator to know about the age of the victim, especially at the time of the first encounter, when she had become pregnant." The age came to light from the the matriculation certificate of the victim, which showed her date of birth to be April 1, 2003. It emerged that the victim was a 16 year old minor when she had met the appellant for the first time and had continued with her relationship for a very long time during her minority. 

The marriage was performed after the offence of rape was lodged. The Court observed: "Prima facie, it appears to be a case of a gun-shot marriage and, thereafter, that marriage having failed for some reason or the other." The Court inferred that "the victim having voluntarily accepted the matrimonial relationship with the appellant and staying in her matrimonial home for three years, which fact was clearly admitted by her in her deposition before the Trial Court and there being no investigation about the minority of the victim, we do not find it to be a case of rape." It pointed out that "there is no proof of the fact that the relationship was consummated when the victim was only a minor and had not crossed over the date of majority." The Court concluded, "we find the accusation against the appellant to be unworthy of complete reliance. We, therefore, cannot put our imprimatur to the opinion arrived at by the Trial Court."

The Court observed that "the victim had a field day when she approbated and reprobated, depending upon her equation with the appellant and his family members." It has recorded that "the victim has herself stated under Section 164 Cr.P.C. as also before the Trial Court that she got married to the appellant,  it was an important fact to have been disclosed before the Investigator as also before the Trial Court. The very factum of marriage and the victim staying in her matrimonial home for more than two years would have made the allegations absolutely false."

The Court has noted that the victim "has also admitted that she became pregnant because of the association with the appellant, but when the appellant refused to marry her, she lodged a case. After the case was lodged, the appellant married her and she was happily residing in her matrimonial home."

The judgement notes that "all the while that she made statement before the Magistrate under Section 164 Cr.P.C. and in her deposition before the Trial Court, she had referred to the appellant as having plighted his troth to her. There was obviously love relationship between the victim and the appellant."

The Court's direction reads: "the appellant/Prabhas Singh is in jail, he is directed to be released from jail forthwith, if his detention is not required in any other case."

Notably, there is a glaring proofing error in the opening sentence of the judgement. It reads: "The sole appellant/Prabhas Singh has been convicted for the offence under Section 376 (3) of the Protection of Children from Sexual Offences Act, 2012." Instead of referring to Section 376 (3) of the IPC, it inadvertently refers to POCSO Act. The fact is that there are only 46 Sections in the POCSO Act.  Section 376 (3) of IPC which was inserted in 2018 states that "Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim."  

Chief Justice led bench dismisses PIL seeking implementation of Street Vendor (Protection of Livelihood and Regulation of Street Vending) Act

On May 1, 2024, the division bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar dismissed a writ petition praying for implementation the Street Vendor (Protection of Livelihood and Regulation of Street Vending) Act, 2014 as "unnecessary petition". It was filed filed by Qamre Alam and Md. Qayum Uddin.

The judgement in Qamre Alam v. State of Bihar drew on the counter affidavit which provided details of the steps being taken by the Patna Municipal Corporation for implementation of the Street Vending Act. 

The judgement recalled an earlier petition filed by the very same writ petitioners numbered as CWJC No. 17256 of 2019 (Patna Junction Thela Footpath Dukandar Sangh v. State of Bihar) which was disposed of, granting liberty to the petitioners to assist the Court in another writ petition pending on the same subject matter numbered as CWJC No. 15475 of 2016 (Vikash Chandra Guddu Baba Vs. the State of Bihar). The perusal of the judgement in  the former case which provides the names of 119 petitioners does not show the name of Qamre Alam and Md. Qayum Uddin.  

The judgement of Chief Justice Sanjay Karol and Justice S. Kumar bench records that "Patna Junction Street Vendors Association themselves have filed CWJC No. 17976 of 2019, for the same subject matter. There is hence no requirement for a public spirited person to agitate the cause." The fact is that this case was disposed of without expressing "any opinion on the merits of the matter" on November 23, 2020.

The petitioners had prayed for the following relief(s):-
(i) For issuance of writ of mandamus commanding upon the respondents to implement the prevision of street vendors (Protection of livelihood and Regulation of Street Vending Act 2014 and after survey the town vending committee shall ensure that all existing street Vendors identified in the survey are accommodated in the Vending Zone (which is not declared till date) in accordance with the plan for Street Vending and the holding capacity of the Vending Zone.
(ii) For issuance of writ of mandamus commanding upon the respondents not to disturb/remove the from existing place of business Street Vendors from existing place of business in the name of Anti encroachment Drives as they are earning their livelihood for themselves and also for their family members. Since last several years as despite several insurance given by the respondents, no Street Vending Zone has been specific and they have been removed one place to another place in the name of the Anti encroachment drive.
(iii) For issuance of writ of Mandamus to Specific the Vending Zone for the Street Vendors.
(iv) For issuance of writ of mandamus commanding upon the respondents to ensure that all the Street Vendors who are earning their livelihood from place situated near the Patna Junction adjacent to Veena Picture Hall, Patna are accommodated in the Vending Zone after specifying the place of Vending Zone.
(v) For the direction to the respondents not to disturb the Street Venders who are earning their livelihood from the place at Patna Junction near Veena Picture Hall, Patna prior to fixing the place as Vendor Zone and accommodating them in the said Vendor Zone.
(vi) For the other reliefs in facts & circumstances of the case.”

The petition was disposed of in the following terms:-
(a) Petitioners’ representation, which is pending before the appropriate authority, shall be considered and decided in accordance with law within a period of four weeks from today;
(b) Liberty is reserved to the petitioner to take recourse to such remedy, pursuant to the decision taken on such representation, including approaching this Court afresh on same and subsequent cause of action, if so required and desired;
(c) We have not expressed any opinion on the merits of the matter. 

With regard to the latter case CWJC No.15475 of 2016 (Vikash Chandra Guddu Baba Vs. the State of Bihar), the judgement of the bench of Chief Justice Vinod Chandran and Justice Partha Sarthy dated September 22, 2023 makes it crystal clear that the writ petition was closed with certain observations. The observation reads: "The writ petition has been pending since 2016 and it is submitted by the petitioner in person that on the basis of orders passed by this court many of the encroachments have been removed." It recorded that Prabhat Kumar Verma, the AAG-3 informed the Court that "the State and the District Administration are relentlessly pursuing the matter and ensuring that no difficulty is caused to the public. We hope that the State does not let up on the removal of such encroachments wherever it is found and also ensure that there is no further occupation of public place by trespassers."

Notably, on October 4, 2017, the bench of Chief Justice Rajendra Menon and Anil Kumar Upadhyay had passed an order in Vikash Chandra Guddu Baba v. State of Bihar wherein it recorded that "the Patna Municipal Corporation in C.W.J.C. No. 2442 of 2017 has made statement on oath before this Court that they are proposing to create vending zones in the entire city of Patna and thereafter remove the encroachers to the said zone, list the matter for analogous hearing along with C.W.J.C. No. 2442 of 2017 and C.W.J.C. No. 3923 of 2016. Meanwhile, further action taken should be indicated to this Court and a report filed." C.W.J.C. No. 2442 of 2017 refers to Krishna Kumar Singh v. State of Bihar which was dismissed on April 21, 2023. The dismissal order reads:"Though it is submitted that Advocate Satya Prakash has expired, Vakalanama is also seen to be filed by Advocate Mr. Sachin Kumar. Consistently, none appears for the petitioner. As such, writ petition stands dismissed for default" after listing/hearing it on 30 occasions.  

The latter case C.W.J.C. No. 3923 of 2016 refers to Zila Footpath Dukandar Sangh, Muzaffarpur v. State of Bihar, which was disposed by the bench of Chief Justice Sanjay Karol and Justices Dinesh Kumar Singh on November 15, 2019. The recorded that Yogesh Chandra Verma, senior counsel stated that "out of 142, only 58 vendors have been issued identity cards and the rights of the remaining vendors remain denied." 

The Court's judgement reads: "Having considered the material placed on record in its entirety, we are of the considered view that interest of justice will be best met if each one of the remaining vendors were to approach the authority for redressal of their surviving grievances, including non-implementation or incomplete implementation of the provision of Sections-3 and 4 of The Street Vendors (Protection of Livelihood And Regulation Of Street Vending) Act, 2014." It observed: "We are sure that on receipt of such request, cases of each one of the remaining vendors shall be considered by the appropriate authority in accordance with law expeditiously and preferably within a period of 3 months from today. Mr. Prasoon Sinha, appearing for the respondent Municipal Corporation, ensures of the same. In view of the aforesaid directions, we dispose of the present petition reserving liberty to the remaining vendors to seek appropriate remedies in accordance with law, including approaching this Court by way of separate petitions" after listing/hearing the case on 33 occasions.

 

 

High Court sets aside judgement of Special Judge, POCSO Act, Samastipur

In Pappu Sharma v. State of Bihar, the direction of the division bench of Justices Ashutosh Kumar and Khatim Reza reads: "In face of the Doctors’ evidence, there could be a little doubt that the victim was attempted to be violated but finding the accusation against the appellant to be absolutely without any basis, we are constrained to set aside the judgment and order of conviction. The appellant is acquitted of the charge. Since the appellant is in jail, he is directed to be released forthwith unless his detention is required in connection with any other case". In its order, Patna High Court's bench heard the appellant who was convicted for the offence under Section 376 IPC and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 vide judgment dated July 13, 2017 passed by the Special Judge, POCSO Act, Samastipur in Dalsingsarai. 

By order dated July 18, 2017, the appellant, a resident of Rasidpur, PBachhwara, Begusarai was sentenced to undergo imprisonment for life along with a fine of Rs. 1,00,000/- and in default of payment of fine, to further suffer rigorous imprisonment (R.I.) for one year for the offence under Section 6 of the POCSO Act. No separate sentence was awarded for the offence under Section 376 IPC. 

The judgement records that an eight year old girl is alleged to have been sexually violated by the appellant. The mother of the victim (PW4) had lodged the F.I.R. on 14.06.2015 alleging that on June 13, 2015, there was a religious congregation in front of her house under a peepal tree, where many persons of the village had assembled. She along with her daughter (victim) and a toddler slept on a cot by around 8.00 P.M. At about 12 ‘O’ Clock in the night, when she got up from her sleep, she did not find her daughter (victim) around. She came out in search of her daughter but to no avail. Shortly thereafter, she found her daughter weeping in the garden. When she was asked, she disclosed before PW4 that a musician of the band party had brought her at that place and had sexually assaulted her. The accused person had run away. PW4 lifted her daughter and brought her home and inquired about the musician in the band party. She came to know that one Pappu Sharma/appellant of Begusarai was member of the band party. The appellant was confronted with the afore-noted allegation but he denied and ran away. The local Mukhiya was informed about the occurrence, who in turn informed the police. The victim was brought to Dalsingsarai hospital and after her treatment, PW4 lodged the F.I.R. with the Mahila Police in Samastipur.

Since the appellant was the only person about whom there was a doubt that he had committed the offence, he was chargesheeted and put on trial. The Trial Court after having examined nine witnesses on behalf of the prosecution convicted and sentenced the appellant.

The High Court observed that from the deposition of PW4 before the Trial Court, it appears that it was only on her guesswork that she had raised allegation against the appellant. In her examination in chief, she stated that somebody had taken her daughter and had sexually violated her. On being asked, the victim had told her that one boy had taken her to the garden and had physically violated her. During cross-examination, she admitted that her daughter only said that one musician had taken her to the garden. It was found out that the musician playing in the band party was Pappu Sharma (the appellant). His name was not taken by the victim. The mother of the victim did not even recognize the appellant.

The victim was examined. After testing her competence to depose through voir dire, the Trial Court recorded her statement. Voir dire test is a test to determine the maturity and capability of a minor to be a witness. In this test, a judge to test the mental capacity of a minor, asks him/her questions not related to the circumstances of the case. Although it is not a rule but evidence by a minor ought to be accompanied by corroborating evidence as given section 142 of the Indian Evidence Act, 1872. The Court is cautious when there is a need to rely solely on a child’s testimony. The victim completely denied that the appellant who was standing in the dock, had committed any wrong act with her. She recognized the appellant but in no uncertain terms stated that he was not the person, who had caused trouble to her. The other witnesses, did not support the prosecution case and have been declared hostile. The grandfather of the victim denied the factum of rape of his granddaughter. 

The Court's order records that the victim was examined by Dr. Pushpa Rani and Dr. Hemant Kumar Singh, who found her to be between 7 to 8 years of age and there being strong evidence of sexual assault on her. Thus, there could be a possibility of the victim having been sexually violated but the accusation against the appellant was based on guess-work and some misgivings about his being the musician in the band party which was hired in the religious congregation. Had it not been the case, there would have been specific accusation against the appellant.

The High Court's bench led by Justice Ashutosh Kumar concluded that "it appears that it was only on the guess-work of the informant that the appellant was put on trial.

 

 

 

Justice Ashutosh Kumar led bench sets aside judgement of Additional District & Sessions Judge-IV, Siwan, aquits four of murder charges, directs release of convicts

In Ram Awadh Kishore Prasad v. State of Bihar and Dashrath Sahni v. State f Bihar, Patna High Court's bench of Justices Ashutosh Kumar and Khatim Reza observed, "We are amazed as to how the Trial Court found evidence good enough to convict all the appellants for the offence under Section 302 of the IPC. In the absence of any evidence worth its name, the prosecution has miserably failed to prove the case against all the appellants. The conviction of the appellants are thus set aside. The appellants are acquitted of the charges." The other appellants are Bechu Sahni and Kanhaiya Sahni.

The Court's judgement reads: "Appellant/Ram Awadh Kishore Prasad [in Cr. Appeal (DB) No. 1031 of 2017] is in jail. He is directed to be released from jail forthwith, if not required or detained in any other case. Appellants/Dashrath Sahni, Bechu Sahni and Kanhaiya Sahni [in Cr. Appeal (DB) No. 858 of 2017] are on bail. Their liabilities under the bail bonds are discharged....Let a copy of this judgment be dispatched to the Superintendent of the concerned Jail forthwith for compliance and record."

The appellants were convicted under Sections 341, 323, 504 and 302/34 of the Indian Penal Code (IPC) vide judgment dated June 13, 2017 passed by the Additional District & Sessions Judge-IV, Siwan in Sessions Trial No. 393 of 2014 (G.R. No. 2700 of 2012), arose out of Darauli P.S. Case No. 67 of 2012. By order dated June 16, 2017, they were sentenced to undergo rigorous imprisonment (R.I.)) for one month under Section 341 of the IPC; R.I. for one year, to pay a fine of Rs. 1,000/- each and in default of payment of fine, to further suffer R.I. for three months under Section 323 of the IPC; R.I. for one year, to pay a fine of Rs. 1,000/- each and in default of payment of fine, to further suffer R.I. for three months under Section 504 of the IPC and R.I. for life, to pay a fine of Rs. 5,000/- each and in default of payment of fine, to further suffer R.I. for six months under Section 302 of the IPC. The sentences were ordered to run concurrently. 

It all began with the killing of one Bigan Bind and the injury of his son and nephew, viz., Kush Kumar Bin and Dhanu Bin in the occurrence. The accusation against appellant/Ram Awadh Kishore Prasad (Cr. Appeal (DB) No. 1031 of 2017) was of assaulting the deceased on his head by means of a rami (iron rod). Kush Kumar Bin and Dhanu Bin are said to have been assaulted by appellants/Dashrath Sahni, Bechu Sahni and Kanhaiya Sahni. The deceased died after five days of the occurrence. 

The FIR was lodged by Kush Kumar Bind (as P.W. 9) who is the son of the deceased. He had alleged in his written report dated 25.07.2012 that a dispute had erupted between appellant/Ram Awadh Kishore Prasad and the deceased with respect to fixing of pegs in the water body for fishing. After a brief squabble, appellant/Ram Awadh Kishore Prasad gave a rami blow on the head of the deceased. He and Dhanu Bin were held back by appellants/ Dashrath Sahni, Bechu Sahni and Kanhaiya Sahni and were also assaulted by them. As a result of assault on the deceased, he received injuries on his head and fell down. The deceased was thereafter assaulted by all the appellants. In the meantime, many persons of the village arrived and seeing them, the appellants fled towards Darauli.

At the Trial, Kush Kumar Bind, the informant made a somersault and stated in his cross-examination that somebody else had drafted the written report and he was not aware of the contents of it. So far as the assault is concerned, he has supported the prosecution case to the extent of there being a dispute between the deceased and appellant/Ram Awadh Kishore Prasad with respect to fishing rights. The assault made on the deceased made him unconscious. He was taken to Darauli Hospital for treatment and from there, he was referred to Siwan and later to Patna, where he died. The death took place on July 31, 2012.

With respect to the enmity between the parties, Kush Kumar Bind admitted that appellant/Ram Awadh Kishore Prasad was the Mukhiya, whereas the deceased was a candidate for the post of secretary of the Fishing Cooperative Society. His candidature was being opposed by appellant/Ram Awadh Kishore Prasad. He has denied the suggestion that one Nandu Sahni had opposed appellant/Ram Awadh Kishore Prasad in the election for Mukhiya, in which election, the deceased was from the side of Nandu Sahni and that only on the asking of Nandu Sahni, the appellants have been made accused in this case. 

Dhanu Bind (as P.W. 6), who is the nephew of the deceased, was examined as P.W. 6. The sequence of events as narrated by him is different from the prosecution version. He stated before the Trial Court that he is an expert at fishing. For the dispute over fixing of pegs in the pond for the purposes of demarcating the area in which fishing could be done, a dispute had taken place when the appellants had started assaulting him. The deceased and P.W. 9 had come to his rescue, when the deceased fell down. Nobody had spoken about the occurrence to anyone. At the time of occurrence, only three persons, viz., the deceased, P.W. 7 and him were present. This is in stark contrast to the deposition of the informant (P.W. 9) who has claimed that many persons of the village had arrived immediately after the assault. He has also spoken about the association of the deceased with Nandu Sahni who had contested the election of Mukhiya and had lost to appellant/Ram Awadh Kishore Prasad.

The High Court observed, "It is very surprising that even though the deceased died in hospital and the post-mortem examination was conducted on his dead body, but neither the post-mortem report has been brought on record nor the doctor who had conducted the post-mortem examination has been brought to the witness-stand. The reasons for it remain completely unknown. The Trial Court has completely overlooked this fact and has discussed about the injury on head and one of the legs of the deceased."

The order notes that "The absence of post-mortem report and the evidence of the Doctor who conducted the post-mortem examination, give a death blow to the prosecution case. We have also found that independent witnesses were unanimous in stating that the deceased died because of fall on a boulder. That apart, there is quite consistency in the deposition of the witnesses regarding the case having been filed at the instance of Nandu Sahni, who had his own axe to grind against appellant/Ram Awadh Kishore Prasad. Nandu Sahni had lost in the elections to the post of Mukhia to appellant/Ram Awadh Kishore Prasad. This postulate appears to be correct for the reason that even the informant had not written the FIR which formed the basis of prosecution. Someone else had done it and he had signed it."

No Confidence Motion under Bihar Panchayat Raj Act must be considered: Patna High Court

In Munni Khatun v. State of Bihar and 22 others, Patna High Court's division bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar endorsed the submission of  Y. C. Verma, the senior counsel of the appellant, and directed that No Confidence Motion be considered immediately under Section 44 (3) of the Bihar Panchayat Raj Act, 2006.  

The final paragraphs of the judgement reads: "it is imperative that the No Confidence Motion be considered immediately. The No Confidence Motion will be considered on 26.04.2024 at 11:00 AM in the Panchayat Bhawan, in the presence of the Executive Officer....Whatever legal consequences follow, on the decision taken at the meeting will have to be scrupulously complied with." The judgement authored by the Chief Justice was delivered on April 20, 2024.  

The writ petitions filed by the Pramukh and Up-Pramukh from Fulwaria, Gopalganj against the No Confidence Motion being carried on January 12, 2024 were rejected by Justice Purnendu Singh, the Single Judge of the High Court due to undue delay of more than three months. It was also found that there was already an election scheduled on February 7, 2024, which was stayed. After dismissal of the writ petition there was an election scheduled on April 22, 2024. The petitions were filed by Ranjan Kumari Tiwari and Munni Khatun. Justice Singh had recorded that "No reason has been assigned for delay in approaching this Court." He had concluded that "The writ petitions deserve to be dismissed for having approached this Court after delay of nearly three months after the requisition dated 30.12.2023, was communicated to the petitioners and also in view of the fact that elections for the post of Pramukh and Up-Pramukh have been notified."

The division bench heard senior counsel for the private respondents and counsels for the State Election Commission and the State besides Verma, the senior counsel. 

The Court drew on Section 44 (3) of the Bihar Panchayat Raj Act which specifies that the requisition for a special meeting to consider the no confidence motion shall be presented to the Pramukh in writing with a copy to the Executive Officer of the Panchayat Samiti, by not less than one third of the total number of members elected directly from the territorial constituencies. The provision then provides that the Executive Officer should immediately bring the requisition to the notice of the Pramukh and the Pramukh should convene such meeting on a date falling within 15 days of such requisition. It is further provided that if the Pramukh fails to call the special meeting, the Up-Pramukh or the requisitionists themselves i.e. one third of the total number of members elected directly, could call for a specialmeeting. 

The Court observed that "the right of the Up-Pramukh or the requisitionists to call for a special meeting would arise only on the expiry of the first fifteen days."

The Court's judgement recorded that in the Munni Khatun case, the requisition was made on December 30, 2023 and the special meeting convened by the requisitionists, as notified by the Executive Officer to the Pramukh and Up-Pramukh was on January 12, 2024, within the fifteen days period.

The Court observed, "we are of the opinion that there is a clear statutory violation insofar as the convening of the meeting is concerned. However, the Pramukh has also failed to comply with the statutory obligation cast on the Pramukh, to call for a meeting within fifteen days; since till 12th, the 13th day, no meeting was scheduled. Since there is clear statutory violation in convening the meeting, where the No Confidence Motion was scheduled; we are of the opinion that the election convened on 22.04.2024 shall not be proceeded with."

Takshila Educational Society failed to avail alternative remedy, petition dismissed by High Court

In Takshila Educational Society v. The Assessment Unit, Income Tax Department, National Faceless Assessment, Centre, New Delhi, the division bench of Patna High Court observed, "The plea made of no oral hearing afforded has to be considered in the context of the option not having been exercised; which amounts to a waiver" in its judgement dated April 22, 2024. Takshila Educational Society, the petitioner is aggrieved with the assessment order dated March 22, 2024, passed without affording an opportunity of hearing. There is an appeal provided from the order, which has not been availed of. 

The petitioner sought an opportunity for a proper hearing. The senior counsel for the petitioner relied on a Full Bench decision of Patna High Court in Commissioner of Wealth-Tax Vs. Sri Jagdish Prasad Choudhary, (1995) 211 ITR 472X (Pat). Therein, the specific provision on which the dictum was laid was Section 18 (2) of the Wealth Tax Act, which reads as under: “18 (2) No order shall be made under sub-section (1) unless the person concerned has been given a reasonable opportunity of being heard." 

The Full Bench has held that the word “heard” occurring in Section 18(2) of the Act means to be heard “orally” and not a mere consideration of the case as made out in the written representation. Incidentally, it was also examined whether such an oral hearing can be given only on the request of the person concerned or whether under the scheme of the Act, there is an implied obligation of the concerned authority to offer an opportunity of oral hearing. It was found on the scheme of the Wealth Tax Act, specifically sub-Section (2) of Section 18 that even without a request there is an implied obligation on the authority.

The Court's judgement reads: "4. Juxtaposed with the above provision, we have to consider Section 144B(vii), which reads as under: “(vii) the assessee or any other person, as the case may be, shall file his response to the notice referred to in clause (vi), within the time specified therein or such time as may be extended on the basis of an application in this regard, to the National Faceless Assessment Centre;”

When one looked for Section 144 B (vii) in the  Income Tax Act, 1961, it was noticed that the entire Section 144 B has been "Omitted by the Direct Tax Laws (Amendment) Act, 1987" as per its Section 51 with effect from April 1, 1989. The omitted provision dealt with "Reference to Deputy Commissioner in certain cases".

Drawing on these omitted provisions, the Court observed: "5. Hence, under the scheme of the Income Tax Act, specifically after the faceless assessment was brought into force, a request has to be made for an oral hearing. There is a specific option provided, which has to be ticked in the affirmative, to make the request while uploading the objection. Unless the request is made, the faceless assessment would be concluded without an oral hearing, which again is as per the scheme of the Act. We do not think that the dictum of the Full Court applies here. We also notice that there is a provision for appeal where all the facts can be argued in person. The appellate authority also has sufficient power to get a report from the Assessing Officer, after affording an opportunity of hearing before the Assessing Officer." These observations require re-consideration in the light of the omitted provisions which appear to have erroneously been cited.   

The Court drew on the judgement of the Supreme Court in State of Himachal Pradesh v. Gujarat Ambuja Cement Limited (2005) 6 SCC 499 to ascertain the contours of the High Court's jurisdiction under Article 226 of the Constitution of India and the scope to interfere with appellable orders, as laid down by the Supreme Court. The Court has held that if an assessee approaches the High Court without availing the alternate remedy, it should be ensured that the assessee has made out a strong case or that there exists good grounds to invoke the extraordinary jurisdiction. It was clarified that the remedy of writ is an absolutely discretionary remedy. The High Court can always refuse the exercise of discretion if there is an adequate and effective remedy elsewhere. 

It observed: "The High Court can exercise the power only if it comes to the conclusion that there has been a breach of principles of natural justice or due procedure required for the decision has not been adopted. The High Court would also interfere if it comes to a conclusion that there is infringement of fundamental rights or where there is failure of principles of natural justice or where the orders and proceeding are wholly without jurisdiction or when the vires of an Act is challenged." The judgement was authored by Chief Justice K. Vinod Chandran.

The High Court reserved the liberty of the petitioner to approach the appellate authority. The period during which the writ petition, was pending, from April 10, 2024, till April 22, 2024 shall not be reckoned as delay.

Computerisation should not violate principles of natural justice, High Court sets aside the assessment order of the Income Tax Department

In District Bar Association, Supaul v. Assessment Unit, Income Tax Department, Patna High Court's bench of Chief Justice and Justice Harish Kumar set aside the assessment order of the Income Tax Department. The judgement observes, "We make it clear that the assessment order is set aside only on violation of the principles of natural justice and we have not looked at the merits of the assessment at all."

The petitioner was aggrieved with the assessment order passed on 27.03.2023 without providing adequate opportunity for being heard. The writ petition has been filed merely on the ground of violation of principles of natural justice. The request for adjournment made by the petitioner dated March 4, 2023 was filed in the portal of the Income Tax Department. Despite that, an assessment order was passed without affording any opportunity of hearing. 

Notably, the Department filed a response specifically contending that "no such request for adjournment was received in the portal of the Department." In compliance with the order of the Court, the petitioner filed a supplementary affidavit dated December 14, 2023, wherein "an auto generated mail issued from the portal of the Income Tax Department, that the request for adjournment for submission to notice under 147 is successfully submitted." The Department objected to it stating that the request for adjournment has to be uploaded in the assessment module of the “ITBA portal”, which has not received any request for extension of time. Although the Income Tax Department submitted that the adjournment request was not received in the ITBA portal but it did not disown the mail which was  issued by it. 

The Court observed that there is nothing to point out that suitable instructions were issued by the Department to the assesses to upload the adjournment requests in a particular portal. "The computerisation is to facilitate expeditious assessment and it cannot result in such gross violations of principles of natural justice." 

The judgement was authored by Chief Justice K. Vinod Chandran. The Court set aside the order dated March 27, 2023. Its direction dated April 23, 2024 reads: "The Income Tax Officer, Ward-3(4), Saharsa, who has filed the counter affidavit in the writ petition, shall on receipt of the certified copy of the judgment, facilitate the opening of the portal so as to enable filing of objections. The petitioner shall file the objections and after affording a personal hearing, the matter shall be considered afresh."

Jharkhand residents languising in Buxer jail after conviction in NDPS case, High Court to hear them on May 9

The matter related to suspension of conviction over nine quintals of ganja came up for hearing before the division bench of Justices Ashutosh Kumar and Khatim Reza. The counsel for Shankar Yadav, the second convict and the first appellant sought adjournment. The first appellant, a resident of Jharkhand is in Ara jail. Dr. Gopal Krishna, the counsel for Pritam Lakra (22), the second convict and the second appellant made a brief submission about how Lakra is not covered under offences under Section 20 (b) (ii) (C) and Section 25 of Narcotic Drugs And Psychotropic Substances (NDPS) Act, 1985 because Lakra, the resident of Jhrakhand is not a cultivator, producer, manufacturer, possessor, seller, purchaser, transporter, importer,  exporter or user of ganja. He is not the owner or occupier or controller or user of any house, room, enclosure, space, place, animal or conveyance. Therefore, he does not have the agency to knowingly permits it to be used for the commission of offence under NDPS Act by any other person.

The counsel for Pritam Lakra informed the High Court about Nav Kumar Ojha, the third convict in the case who is languishing in Buxer jail without any legal assistance because of extreme poverty and unsound mental health of his wife. He submitted that the Court may direct the Legal Services Authority to provide legal aid to Ojha, the resident of Jhrakhand. Justice Ashutosh Kumar led bench asked Dr. Krishna, the counsel to get vakalatnama from Ojha and provide free assistance. The counsel agreed to do so. The case is listed for hearing on May 9, 2024.       

Section 20 of the NDPS Act deals with punishment for contravention in relation to cannabis plants and cannabis. It states that "Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—(a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable..."  Section 20 (ii) b of the NDPS Act states that where such contravention relates to sub-clause (b) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. Section 20 (ii) (C) states that where such contravention relates to sub-clause (b), and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 

 

The judgement of the the Additional Sessions Judge-VIII, Bhojpur reveals that Pritam Lakra, the helper of the truck is not covered under the ambit of Section 20 (ii) (b) (C) of the NDPS Act because there is nothing on record to show that he is a cultivator of any cannabis plant or producer, manufacturer, possessor, seller, purchaser, transporter, inter-State importer, inter-State exporter or user of cannabis. It is apparent that the Additional Sessions Judge-VIII, Bhojpur committed an error in convicting him under Section 20 (ii) (b) (C) of the NDPS Act.

As to Section 25 of NDPS Act which deals with the punishment for allowing premises, etc., to be used for commission of an offence. It states that "Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence." This provision too was substituted by the Narcotic Drugs And Psychotropic Substances (Amendment) Act, 2001 with effect from October 2, 2001. 

A careful reading of Section 25 of NDPS Act shows that Lakra, the helper of the  truck in question is not covered under the ambit of Section 25. It seems that the Additional Sessions Judge-VIII, Bhojpur committed an error in convicting him under Section 25.

 

Notably, Section 20 (b) (ii) (C) of the NDPS Act was substituted by the Narcotic Drugs And Psychotropic Substances (Amendment) Act, 2001 with effect from October 2, 2001. There were over 40 amendments made in the original NDPS Act, supposedly to address certain obligations specially in respect of the concept of ‘controlled delivery’ arising from the UN Convention against Illicit Traffic in Narcotic Drugs andPsychotropic Substances 1988 to which India is one of the 87 signatories out of 192 parties since March 27, 1990. Prior to that India amended the NDPS Act for the first time in 1989. The UN Convention came into force on November 11, 1990, in accordance with Article 29(1) of the Convention. The NDPS Act was amended in 2014 as well. Some 25 amendments were made under the 2014 legislation.   

 

Out of 1541 judicial officers, seven judges suspended by Patna High Court

Out of a total of 1541 judicial officers, seven judges have been suspended by Patna High Court.   

Out of 90 District and Sessions Judges, two are under suspension:

1. RAJ KUMAR- II, Principal Judge (Family Court), Khagaria, Posting Date: 11-Sep-2020

2.  DHARMENDRA KUMAR JAISWAL, District and Sessions Judge, Supaul, Posting Date: 04-Mar-2023

Out 400 Additional District and Sessions Judges, 3 are under suspension:   

1. AVINASH KUMAR- I, Additional District and Sessions Judge
 Supaul, Posting Date: 05-Aug-2022

2. ARUN KUMAR- I, Additional District and Sessions Judge, Chapra
Posting Date: 11-May-2022

3. SATYA PRIYA ANAND, Additional District and Sessions Judge, Hilsa
Posting Date: 11-May-2022

Out of 275 civil judge senior division, one is under suspension:

1.  SAVITA RANI, Civil Judge (Sr.Div.)-cum-A.C.J.M., Ara, Posting Date: 12-Dec-2019

Out of 776 civil judge junior division, one is under suspension:

1. ASHUTOSH KUMAR- III, Civil Judge (Jr. Div.)-cum-J.M. I Class, Barh, Posting Date: 18-Sep-2014

Patna High Court's Chief Justice convenes a Full Court Reference after the demise of Justice Syed Rafat Alam

Patna High Court's Chief Justice condoled the sad demise of Justice Syed Rafat Alam (73), ex- judge of the High Court and the ex-Chief Justice of Madhya Pradesh High Court and Allahabad High Court. It has convened a Full Court Reference in the Centenary Hall of the Court. He passed away on April 22, 2024. He was a judge of Patna High Court only for 20 days in November 1994. He was elevated as permanent judge of the Patna High Court on November 8, 1994 and was transferred to Allahabad High Court on November 28, 1994 within 20 days of appointment. There no record of any judgement or order authored by him on the Patna High Court's website. His name does not feature in the names of the judges who wrote judgements or orders. 

Justice Syed Rafat Alam was born on August 8, 1950. He graduated in Art with Honours from St. Columbus College, Hazaribagh in the year 1970 and did LL.B. from Patna Law College, Patna. He enrolled as an Advocate on April 1, 1975. He practised in Patna High Court in constitutional, civil taxation, labour and university matters. He worked as standing counsel for the State of Bihar. He also served as the standing counsel for the Bihar State Electricity Board, Patna University and Magadh University. He served as Part Time Lecturer in Law Faculty of College of Commerce, Patna from 1983 till his elevation as Judge of the High Court.

Justice Alam's appointment as Chief Justice of Allahabad High Court was challenged before the Court's Lucknow bench of  Justices Pradeep Kant and Ritu Raj Awasthi. The petition filed by Asok Pande, an advocate of Allahabad High Court'’s Lucknow Bench. Pande challenged the appointment of Justice Alam on the ground that he had worked as a judge in the Allahabad High Court for over 10 years. As per the petition, the transfer of Justice Alam from Madhya Pradesh High Court to Allahabad High Court “was against the settled policy adopted by the government in posting the Chief Justices of the High Court”. The petition also claimed that as per the government’s policy,a judge is not posted as a Chief Justice of that High Court where he had worked for a long time or has originated. The Court dismissed the petition. It observed that “the writ petition did not raise any grievance worth being considered under Article 226 of the Constitution and is based on irrelevant,misconceived and uncalled for pleadings”. A legal practitioner of such a long standing should have exercised restraint in filing such a petition”. Justice Alam took oath as as Chief Justice of Allahabad High Court on August 5, 2011. He retired on August 7, 2012.

Earlier, Justice Alam was elevated as Chief Justice of Madhya Pradesh in 2009. Prior to that he was appointed as Acting Chief Justice from 30/12/2004 to 10/01/2005, 16/01/2005 to 18/02/2005, 27/01/2007 to 06/03/2007 and 09/03/2009 to 19/03/2009. He was  appointed as Chief Justice of High Court of Madhya Pradesh on December 20, 2009.

On the very next day of his retirement as Chief Justice of Allahabad High Court, Justice Alam was appointed as Chairman, Central Administrative Tribunal (CAT) on August 8, 2012. As Chairman of CAT, he authored 126 orders including judgements. 

He was appointed as one of the administrators of the Jammu & Kashmir Cricket Association by Jammu & Kashmir High Court. He was the Chairman of Uttar Pradesh Human Rights Commission (UPHRC) from April 7, 2016 till August 7, 2020.

As a judge of High Courts of Madhya Pradesh and Allahabad, chairman of CAT and UPHRC, Justice Alam wrote many judgements, orders and recommendations. As Chief Justice of Allahabad High Court, he was part of the benches that delivered 6333 judgements. 

Common Cause, a civil society organisation had written to him when he was Chief Justice of Allahabad High Court on November 3, 2011 regarding conformity of Allahabad High Court (Right to Information) Rules, 2006, with Right to Information (RTI) Act, 2005. Common Cause had jointly filed a PIL in the Supreme Court in March 2008 to expedite the dispensation of justice and reverse the trend of a mounting backlog of court cases. It had sought information on the status of pendency of cases in various jurisdictions in January, 2009. It found that the RTI rules framed by several High Courts, including the Allahabad High Court, deviated from the letter and spirit of the RTI Act. Such rules seemed to be designed to discourage the citizens from using the RTI Act. It filed a complaint under Section 18(f) of the Right to Information Act,  2005, before the Central Information Commission (CIC) with a view to bring the rules framed by High Courts in conformity with the spirit of the RTI Act, which passed a favourable order. Common Cause had presented a petition to Justice Alam pointing out significant deviations in the Allahabad High Court (Right to Information) Rules, 2006, with reference to the RTI Act and the recommendations of the Central Information Commission in respect of these rules contained in its decisions of July 26, 2010 and September 23, 2010. It underlined that the recommendations of the CIC were ignored by the Allahabad High Court. In an earlier decision in the same complaint filed by Common Cause, the CIC had stated: “Consequently, the other issue regarding proactively disclosure of pending cases in various courts under Jurisdiction of High Court of Allahabad, the Commission in light of the provision u/s 25(5) of the Act, hereby recommends the Registrar, High Court of Allahabad to envisage a system by which such information should be proactively disclosed in public interest” on July 26, 2010. But no action was taken by the Allahabad High Court on this recommendation by the CIC. The petition concluded that all rules made under the RTI Act must be within the ambit of the RTI Act and aim to achieve its objective and not hinder it. It is a basic tenet of jurisprudence that the Acts of Parliament must be construed according to their object and intent. It urged that the RTI rules, which do not accord with the spirit of the RTI Act, may be re-formulated in the light of the recommendations of the CIC and in the larger interest of operationalising the  fundamental right to the freedom of speech and expression, of which, right to information is an intrinsic and inalienable part. It requested Justice Alam to ensure that the rules so revised are uploaded on the High Court’s web site.

Conviction under Section 302 converted to conviction under Section 304 Part-II of IPC: High Court

Upon hearing a criminal appeal, Patna High Court's division bench of Justice Ashutosh Kumar and Khatim Reza observed, "we convert the conviction of the appellant under Section 302 to one under Section 304 Part-II of the IPC" in Ram Dular Singh v. State of Bihar (2006).

The Court found that since the attack was without an intention of causing death but surely with the knowledge that it would have caused such injury which might result in death, the appellant, a resident of Kaimur cannot escape the liability under Section 304 Part-II of the IPC for manslaughter and not murder. 

The Court concluded that "if the sentence of the appellant is reduced to the period of custody which he has already undergone, it would sufficiently meet the ends of justice. We order accordingly. The conviction of the appellant/Ram Dular Singh is converted into one under Section 304 Part-II of the IPC and the sentence is modified to the period of custody that he has already served." 

Prior to the judgement, the appellant was released on bail after having remained in jail for about five and a half years. The judgement was authored by Justice Kumar. 

High Court's Division Bench reinstates Panchayat Teacher, modifies and sets aside order of Single Judge Bench

Patna High Court's division bench of Chief Justice and Justice Harish Kumar reinstated a Panchayat Teacher. The judgement modified and set aside judgements of the High Court dated April 28, 2022 passed by a Single Judge in C.W.J.C. No. 17954 of 2019 and C.W.J.C. No. 21685 of 2019 dismissing both the writ petitions filed by Sitamarhi residents Gopal Kumar and Shankar Kumar with a direction to the State Government not to consider any one of them for the post of Teacher and to relieve, any one, who is working on any such post. The Single judge had imposed a cost of Rs.50,000/- to each one of the appellants. The Court has recorded that Shankar Kumar had filed his application form under the category of unreserved without caste certificate and Gopal Kumar's application form was filed under reserved category with his caste certificate.  The report submitted by the State officials also is in support of the contention of the appellant Gopal Kumar and negates the case of appellant Shankar Kumar.

The division bench examined the judgements of the High Court dated April 28, 2022 passed by Justice Sanjeev Prakash Sharma of Single Judge bench. It observed" "this Court is of the considered view that it explicitly deals with the manipulation on the part of the appellant Shankar Kumar and no substantive materials have been found suggesting involvement of the appellant Gopal Kumar in manipulating any document/record." It concluded: "this Court finds that the order rejecting the claim of the appellant Gopal Kumar is not sustainable in any view and accordingly this Court would set aside the order of the learned Single Judge to that extent, which rejected the claim of the appellant Gopal Kumar. So far as the rejection of the claim of the appellant Shankar Kumar is concerned, this Court does not find any error in the impugned order and thus, in our considered opinion, it does not require any interference. However, after taking a lenient view, this Court also would set aside the order to the extent of a cost of Rs.50,000/- imposed on each of the appellants.

The Court directed the respondents including the State of Bihar through its Secretary-cum-Commissioner, Education Department to reinstate Gopal Kumar in service as Panchayat Teacher, the appellant with effect from the date he has been ousted from service after treating the services of the appellant as continuous with effect from his first joining. But it made it clear that he shall not be allowed any monetary benefit for the period he has not discharged any duty and remained out of service. It also made it clear that the earlier period of the appellant Gopal Kumar shall be computed for all other purposes, except the monetary benefit. The judgement was authored by Justice Harish Kumar.

Justice Ahutosh Kumar bench aquits Brind Manjhi of murder charges

Upon hearing the counsel for the appellant and the respondent in Brind Manjhi v. State of Bihar, Justices Ashutosh Kumar and Khatim Reza bench of Patna High Court gave the benefit of doubt to the appellant and set aside the judgment of conviction and the order of sentence by Additional Session Judge XIII, Patna. The appellant was acquitted of the charges raised against him. He was in custody for about twelve and half years by now. The Court directed him to be released forthwith from jail, if not required or detained in any other case. A copy of the judgment is required to be dispatched to the Superintendent of the concerned Jail for compliance and record. The appellant was convicted under Sections 302 and 201 of the Indian Penal Code (IPC) vide judgment dated October 21, 2019. By this order he was sentenced to undergo rigorous imprisonment for life, to pay a fine of Rs. 20,000/- under Section 302 IPC and RI for three years, to pay a fine of Rs. 5,000/-under Section 201 IPC. The case arose out of PS. Case No.-123 Year-2011, Thana: Patliputra, Patna.

The sentences were ordered to run concurrently. The appellant is the sole person put on trial for having murdered a ten year old boy. The mother of the deceased, viz., Manju Devi had lodged the FIR on June 25, 2011 at about 11:15 AM, alleging that on the previous day, at about 6 O'clock in the evening the deceased had brought some articles from the Kirana shop and had thereafter gone out to the house to play as also to pick up rags. When the child did not return after two hours, a search was made for him but to no avail. 

On June 25, 2011, she learnt that the dead body of a boy is lying near Rajapur Bridge near the brick-kiln of one Puneshwar Singh. The young boys of the village and her father-in-law/Sidheshwar Manjhi went to see the dead body and finding it to be the dead body of her son, brought it back. About 15 days prior to the occurrence, the appellant, her neighbour, had fought with the family and had also threatened that he shall decimate the entire family. Therefore, she suspected that the appellant along with his associates had killed the deceased by puncturing him with sharp/ pointed weapon.

The mother of the deceased found that he had been attacked at many places on his neck by a pointed object. She had also participated in the blockade of the road. She was told that the appellant had called the deceased and had lured him for giving tomatoes and biscuits. She was candid enough to tell the Court that neither she nor anyone of the grass-scrapers, who had first seen the dead-body lying on the sands, had seen the act of killing.

From the deposition of the investigator, it became very clear to the Court that while the dead-body was kept on the road and the traffic was blockaded, there was no reference of the appellant as the possible perpetrator of the crime. All that the crowd was asking for was compensation for the family of the deceased. 

The Court noted that the mother of the deceased did not have any suspicion on the appellant when at 10 O’clock in the morning of June 25, 2011, when she had submitted the missing report. It appears that it was only later that the family of the deceased realised that there had been some dispute in the past, a fortnight ago, when the appellant had threatened to decimate the family.

The Court observed: "It could only be a bluster or a brutum fulmen and nothing more." The judgement concluded that "We find that beyond suspicion, there is no other material to justify the conviction of the  appellant." The judgement was authored by Justice Ashutosh Kumar.

Patna High Court publishes Action Plan to reduce cases pending for two- three decades in district courts

Worried about the potential erosion of public confidence in the judiciary that can arise from delays in delivery of justice, Supreme Court Committee for "Model Case Flow Management Rules for Trial Courts, District Appellate Courts , High Courts and to suggest a Plan for Reduction of Arrears in the High Courts and District Courts" has expressed concern regarding huge number of cases "which have been pending for long periods, some for over two and even three decades."

The Action Plan for managing and reducing case arrears in district judiciary incorporates the following principles:

a) Prioritization of Long-Standing Cases: Special emphasis on identifying and resolving cases that have been pending for excessively long periods, such as over 10, 20 or 30 years. 

b) Accelerating the Progression of Cases to Finalization: This principle emphasizes the urgency of moving cases towards a timely conclusion. [It involves not only prioritizing the resolution of long-standing cases,
particularly those over I 0, 20 or 30 years old, but also ensuring that newer cases do not age into these categories.

c) Equitable Case Distribution: Ensure a balanced distribution of cases among judges, taking into consideration the complexity and nature of cases, to prevent overburdening and promote efficient resolution.

d) Effective Handling of Unready and Stayed Cases: Implement strategies for expediting and managing cases that are unready or are stayed by Higher Courts.

e) Effective Utilization of Alternative Dispute Resolution: Encourage the use of mediation and Lok Adalat to resolve disputes with more effective pre-Lok Adalat sittings in old cases.

f) Use of Technology: Leverage NJDG and related tools for better case management, including case tracking systems, to enhance efficiency.

g) Managing Undated Cases: Address the issue of 'undated' cases. Implement measures to ensure that cases do not remain without a scheduled date, facilitating their timely progression and resolution.

h) Adequate Human Resources Support to Judicial Officers: Strengthen the district judiciary by providing sufficient ministerial staff support to judicial officers. This includes ensuring that courts have stenographers, and other essential staff who can assist m case management and other administrative duties.

i) Regular Monitoring and Review: Implement a system for the continuous monitoring of case progress and regular review meetings to assess the effectiveness of action plan.

j) Stakeholder Engagement: Involve bar association and agencies to address procedural delays.

k) Responsive Adaptation: Tailor strategies to meet the specific circumstances of each district, allowing for flexibility and adaptation of the action plan to local scenarios.

The 17 page long Action Plan for Arrears Reduction in District Judiciary (APAaR-DJ) states that "this situation calls for an effective approach to address the issue of delays. lt also noticed that a substantial number of cases are currently in 'unready' state for various procedural reasons, thereby delaying their resolution. Additionally, the prevalence of cases that are stayed by higher courts adds another layer of complexity to the challenge of reducing pendency."

Supreme Court's anger, Bihar Governor and Public Premises (Eviction of Unauthorised Occupants) Amendment Act

Bihar Governor Buta Singh vacated the bungalow in New Delhi after the rebuke from the Supreme Court's bench of Justices B. N. Agarwal and A. K. Mathur on October 24, 2005. The court had asked the government to “throw out” illegal occupants from the government's bungalows while hearing a case related to overstaying by several politicians on government premises in violation of rules and regulations. Buta Singh vacated the 9 Lodhi Estate house and formally handed it over to authorities. Justice Agarwal had observed: “Buta Singh is Governor of Bihar. What is he doing here? How can he be occupying a house here. Throw him out.” 

The government had submitted two lists with 465 names of VIP defaulters to the Court. The first list included those who were staying illegally and the other gave names of dignitaries who were living in houses bigger than their entitlement. 

Buta Singh got singled out as his name figured on top of the list which was submitted to the Court. The controversial Governor was facing criticism from the Opposition parties over his recommendation to dissolve the hung Bihar Assembly. Notably, Prime Minister had expressed displeasure in public about Bihar Governor’s role. 

Notably, the government was not able to file its detailed affidavit on the issue of making the offence of trespassing under Section 441 of the IPC cognisable and non-bailable to give more teeth to the government agency in dealing with the problem. Justice Agarwal headed bench had earlier asked the central and state governments to make their stand clear on making Section 441 a cognisable and non-bailable offence – as Orissa and Uttar Pradesh have done.

In July 2023, Bihar government imposed penalties on several MLAs, who held ministerial berths for “overstaying” at bungalows meant for ministers, even after allotment of houses to them as legislators. 

Significantly, Parliament has cleared a legislation—Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 2019 has been enacted for speedy eviction of unauthorised occupants of government accommodation. It came into effect from September 16, 2019. The Public Premises (Eviction of Unauthorised Occupants) Amendment Rules, 2019 were notified on September 25, 2019. The Ministry of Housing and Urban Affairs has been allocated the task of its implementation of this law under the First Schedule of the Government of India (Allocation of Business) Rules, 1961 as amended up to January 5, 2022. 

Justice Agarwal retired in October 2009 after a nine-year tenure. Fourteen years after his rebuke, this law was enacted to deal with the eviction of unauthorised occupants. It is not clear as to whether this law has been effective on the ground. There is a need for a White Paper on the implementation of this law to ascertain whether it is being implemented without discrimination based on party affiliations.

Judgements of Patna High Court in NDPS cases

In Guddu Singh v. State of Bihar (2018), Justice Ashutosh Kumar set aside the judgment and order of conviction dated February 13, 2017 and February 15, 2017 respectively, passed by the 7th Additional Sessions Judge-Cum-Special Judge, Motihari, East Champaran, in N.D.P.S. Case No. 01 of 2015/30 of 2016, arising out of Chhauradano P.S. Case No. 150 of 2014.  

Guddu Singh, the appellant was convicted for the offence punishable under Section 20(b)ii(B) of the Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985 by the 7th Additional Sessions Judge-Cum-Special Judge, Motihari, East Champaran. He was directed to undergo rigorous imprisonment for five years, to pay a fine of Rs. 50,000/- for such offence and in default of payment of fine to further suffer  simple imprisonment for one year. The appellant was found to be in possession of two kilograms of Ganja. The police submitted charge-sheet after investigation, whereupon the cognizance was taken and the appellant was tried for the offences.

Justice Kumar observed that "it is clearly revealed that there has been violation of Sections 41, 42, 52 and 55 of the N.D.P.S. Act and standing instructions of the N.C.B. with respect to search, seizure and sampling. For the aforesaid reasons, this Court is of the view that the prosecution has not been able to bring home the charges against the appellant for the offence in which he has been convicted, beyond all reasonable doubts."

He concluded that "the appellant/Guddu Singh has remained in jail since 29.12.2014, i.e. for more than three years. This Court, therefore, has no option but to accord the benefit of doubt to the appellant. The appeal succeeds. The appellant/Guddu Singh is acquitted of all charges. He is in jail. He is directed to be released forthwith, if not wanted in any other criminal case. Let a copy of this judgment be transmitted to the Superintendent of concerned jail for necessary compliance." The judgement was delivered by Justice Ashutosh Kumar on March 30, 2018 

In Shiv Shankar Dixit vs. Union of India 2017 (1) PLJR 671, seized articles were placed before the Magistrate after three months from the occurrence. No cogent evidence was produced that alleged quantity of Ganja was seized from the conscious presence of the appellant. There was noncompliance of Section 52A of the NDPS act The Prosecution relied on the confession of the accused recorded under Section 67 of the NDPS act. The accused in his confession statement has only said that he did not know that there was Ganja in the vehicle and indicated that Devi sau told him that there was bearing in the vehicle which was to be handed over to one Khan at Barh. He also said in his confession statement that Devi Sau was actual driver who had handed over the steering of the vehicle to the accused and had left the vehicle on the pretext of clearing the Jam. The confession statement was found to be exculpatory in nature and was not found admissible. The accused was accordingly acquitted by the High Court.

In Parmanand Choubey vs. State of Bihar 2017 (2) PLJR 540, a petition for release of vehicle was rejected by the District Judge on the ground that any conveyance used to carry any Narcotic Drug or Psychotropic substance is liable for confiscation under sub section 1 or sub section 2 of the NDPS act and also on the ground that since investigation was still pending, it will not be proper to release the vehicle. It was held that section 60(3) of NDPS act does not put a bar for release of vehicle during the pendency of investigation or trial by the court.

In Muneshwar Pandit vs. State of Bihar 2018 (1) PLJR 494, the Patna High reiterated the law laid down in State of Rajasthan vs. Ram Chandra AIR 2005 SC 2221 and observed that when a person is about to be searched the requirement of section 50 would be that the officer proposing to effect the search cannot act in a dual capacity: first as an officer authorized under section 42 to search a person and second as the Gazetted officer in whose presence the option of search is given to the accused. Officer conducting the search cannot discharge the dualfunction both under section 42 and section 50 of the NDPS Act. The informant has said in his testimony that the SDM was leading the raiding partyand it was in his presence that the seizure and sampling was done but the SDM wasnot examined and even his signature was not available on the seizure list. Moreover,the seized Ganaja was kept in 9 packets but the seal was available only on 6 packets.There was unexplained delay of 20 days in sending the samples to the FSL. The seizure witnesses also denied having any knowledge of the seizure. All these circumstances were found to be fatal to the prosecution case and led to the acquittal of the accused.

In Ram Narayan Shah vs. Union of India 2018 (1) PLJR 386, 200 grams of Heroin was found hidden between the speedometer and visor of the bike from which two samples of 5-5 grams each (S1 and S2) were drawn and sealed with the department seal at the spot. The rest 190 grams were of the recovered substance was heat sealed in transparent polythene packet and was put in a paper envelope and sealed by the department seal which was signed by the seizing officer, independent witnesses and the owner of the goods. Even though the samples were produced before the court but the original seized articles were not produced. The sample taken from the seized bulk was on record and the report of the FSL on the sample taken stated that the sample was that of Heroin and Morphine and the certificate of the articles seized was also proved. These facts coupled with the confessional certificate of the accused under section 67 was found sufficient for conviction of the accused even though the original contrabands that were seized were not produced before the Court.

In Tuntun Gope vs State of Bihar 2018 (1) PLJR 777, charas was alleged to have been recovered from the possession of the accused in presence of BDO. The statement of the BDO showed that he reached the place of occurrence after the seizure. The informant has not said anything in his report about asking the accused for taking his search and about consent by the accused for his search before the magistrate/gazetted officer. There is nothing on record to indicate that the informant made the accused aware that B.D.O. Fatuha is present before him. There is nothing on record to indicate that the informant informed the accused about his right of being searched before a gazatted officer or a magistrate. The seized contraband was sent to F.S.L. for examination on 16.11.2013 while the same wa seized from the possession of the accused on 9.11.2013. The whereabout of the contraband for these seven days was not explained. The seizure and arrest were not reported by the Informant to the Senior Police Officers within 48 hours and thereby Section 57 of the NDPS Act was not complied. The seized contraband was not produced before the trial court and no explanation was given. Benefit of Doubt was given to the accused.

In Raj Kumar vs. State of Bihar 2018 (2) PLJR 214, seized Charas was not kept in Malkhana, the sample was not sealed, sample was not prepared in presence of the Magistrate even after appointment of Magistrate and the seized material was sent to laboratory examination after about one and half years of its seizure. The independent witnesses were not examined and the remaining witnesses were all police officers. No explanation was provided by the prosecution for non-production of the Charas as an exhibit in the trial. The contention of the prosecution that the confession of the accused recorded under section 67 of the Act is sufficient for awarding punishment also did not find favour with the Court since the accused was kept at SSB camp for 24 hours and therefore presumption can be drawn that the confession was not voluntary. Hence the accused was acquitted.

In Bhulan Das vs. State of Bihar 2018(2) PLJR 361, seizure list witnesses were not examined by the prosecution. Instead, defence has examined one of them as defence witness. The said witness has not supported the prosecution case of raid of the houses of the appellants by the police personnel and recovery and seizure of the contrabands from their house. There is nothing on record to show that on receiving the secret information and making the sanha entry, the informant had sent either the information or the copy of the sanha entry to the immediate superior officer. Thus, there was utter violation of Section 42 (2) of NDPS act. There was nothing on record to show that the seized Ganja was either sealed at the place of occurrence by the informant or at the police station by SHO as none of the witnesses examined by the prosecution has stated so. This aspect creates serious doubt about the seizure of the contraband, its quantity and taking of the sample and sending the same to FSL. The samples were not collected from each packet of the seized Ganja separately nor by mixing the contents of each packets together. All these aspects were found to be fatal to the prosecution case and accordingly the case was found fit for acquittal of the accused.

In Sharawan Prasad vs. State of Bihar 2018 (3) PLJR 93, no evidence was offered to show the search and seizure was made in front of any gazatted officer or magistrate. Sampling was also not done as per standing order no:01/98 or 01/89 issued under the section 52A. The seized article was sent for examination after a month of seizure. There was violation of section 57 of NDPS act. The informant himself was the investigating officer of the case. All these circumstances were found sufficient for the acquittal of the accused, the case.

In Amit Kumar vs. State of Bihar 2018 (3) PLJR 90,, possession of any of the drugs covered under the schedule H & H1 without any, license attracts the offence punishable under the NDPS act. Huge quantities of Corex Cough Syrup, Fortwin Inj. & Ativan Tabs. were recovered from the shop of the accused. These drugs contained ingredients specified in schedule H & H1. The accused had license only to sell schedule C & C/1 drugs. Therefore, the order rejecting discharge petition of the accused was affirmed by the Court.  

In Md. Samsul vs. Union of India 2018 (4) PLJR 261, the seizure list witnesses were not examined. The search was carried on information received but this information was not recorded in writing. Inventory of seized Ganja was not proved and entry register of Malkhana where the seized Ganja was kept and from where it was set to have been taken out for destruction was not proved, as such there was no compliance of section 52(A)(2) and of section 50 of the NDPS act. None of the provision regarding search, seizure, preparation of inventory and destruction of contraband articles, certification etc. were followed. Hence conviction and sentence were set aside.