Criminal Appeal (SJ) No. 859 of 2012. Case: Ashok Roy Vs The State of Bihar. High Court of Patna (India)
| Case Number | Criminal Appeal (SJ) No. 859 of 2012 |
| Counsel | For Appellant: Jitendra Narain Sinha, Adv. and For Respondents: S.B. Verma, APP |
| Judges | Gopal Prasad, J. |
| Issue | Narcotics Drugs and Psychotropic Substances Act 1985 - Sections 20(b), 20(b)(2)(c), 22, 42, 42(1), 42(2), 43, 52, 52A, 53, 54, 55, 56, 57 |
| Judgement Date | September 26, 2014 |
| Court | High Court of Patna (India) |
Judgment:
Gopal Prasad, J.
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Heard the learned counsel for the appellants and the State.
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The appellants have been convicted under Sections 20(b) and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as, 'the Act') and sentenced to undergo rigorous imprisonment for ten years with a fine of rupees one lakh for offence under Sections 20(b) and 22 of the Act for each count and in default of payment of fine to undergo, further, rigorous imprisonment for two years and it has been ordered that the sentences will run concurrently.
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The prosecution case, as alleged by the informant, Sub Inspector of Police, Sadhna Singh, Officer-in-Charge, of Bidupur Police Station that on 23.06.2008 she proceeded for patrolling along with the police party in jeep at about 01.00 p.m. from the Police Station and reached at Afrol Chowk at 04.00 p.m., then, got information from spy that a white Armada Jeep, bearing registration no. GJ-1HH-0032 is coming, which is filled with ganja. For verifying the information, she started checking of the vehicle at Afrol Chowk, N.H. 103, Bidupur-Jandaha main road. At about 05.15 p.m. a while jeep was coming from west was given the sign to stop and on seeing the police, the driver of the said jeep turned the vehicle back and tried to flee away, but, the jeep was apprehended and surrounded which appeared the same jeep, as mentioned above, and besides driver one more person was seen seated on the front seat and they disclosed their names as Ashok Rai @ Ashok Kumar Rai and Ranjeet Das @ Ranjeet Kumar Das and from the said jeep a stringent bundle come out and three plastic packets on the middle seat were seen, then, in presence of the witnesses, Santosh Kumar and Chowkidar, Birchand Paswan, the gate of the jeep was opened and, then, on the middle seat three packets wrapped in a blue plastic was found. Three gunny bags found in dickey. The search was made in presence of two witnesses, one packet was opened and on enquiry from both the accused persons they disclosed that it is ganja. In the three gunny packets, each contained three packets of ganja weighing about 8 Kg each. Three blue plastic packets, each containing about 8 Kg weight were seized along with the jeep, seizure list prepared and the articles seized and two persons were on jeep arrested and first information report lodged on the written report. The seizure list of the seized articles and the investigation proceeded.
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During the investigation, the sample was sent for chemical examination to Forensic Science Laboratory and after receiving the report, charge sheet submitted cognizance taken thereof the charge was framed.
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During the trial fourteen witnesses were examined. P.W. 1 is Jeevan Rai, P.W. 2 is Naresh Rai, P.W. 3 is Basu Sakunath Rai, P.W. 4 is Jeevach Rai, P.W. 5 is Santosh Kumar Gupta, P.W. 6 is Gorakh Nath Singh, the investigating officer, P.W. 7 is Resham Kumar Yadav, P.W. 8 is Sadhs Singh, the informant, P.W. 9 is Mahesh Paswan, Chowkidar of Choura Desri Thana, P.W. 10 is Birchand Paswan, Chowkidar of Desri Thana, seizure list witnesses, P.W. 11 is Vijay Kumar Singh, Sub Inspector of Police, Probation, P.W. 12 is the Assistant Director, Forensic Science Laboratory, P.W. 13 is Ram Bachan Singh, the then Havildar, Desri Police Station and member of the raiding party and P.W. 14 is Arun Kumar, the driver.
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The documentary evidence adduced are Exhibits 1, the signature of Mahesh Kumar Gupta, seizure list witness, Exhibit 2 is the written report, Exhibit 3 is the seizure list, Exhibit 4 is series of confession of the accused, Ashok Kumar, Exhibit 5 is the formal first information report, Exhibit 6 is by one in the signature of Suresh Paswan on Forensic Science Laboratory report, Exhibit 6/1 is the signature of Dr. Shyam Bihari Choudhary of Forensic Science Laboratory and Exhibit 7 is the Forensic Science Laboratory report.
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The learned counsel for the appellant, however, has challenged the order of conviction and sentence. The trial Court after considering the oral and documental evidences convicted and sentenced the appellant, as mentioned above, under Sections 20(b)(2)(c) and 22 of the Act. However, it is submitted that since the recovery alleged to be ganja, hence, the conviction under Section 22 of the Act is not applicable. It has, further, been contended that the provision of Section 42 of the Act has not been complied neither the information has been recorded by the Officer-in-Charge under Section 42(1) of the Act before proceeding for search nor the superior officer has been informed under Section 42(2) of the Act and so has violated the mandatory provision under the Act and so the conviction of the appellants can not be sustained. It has, further, been contended that from the evidence, it is apparent that articles which were seized were never sealed nor were not kept in sealed cover in the malkhana of Police Station. It is submitted that when the articles were produced in Court, they were not properly sealed nor the seal or signature of the Officer-in-Charge of the Police Station on the article was placed nor it has been mentioned when it was kept nor malkhana register proved nor the safeguard, provided under Sections 52, 52A, 53, 55 and 57 of the Act have been complied.
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It has, further, been contended that the prosecution has not established or deposed that from where the samples were taken and though it is stated that twelve packets of ganja in three gunny plastic bags weighing 8 Kg each found in nine in three gunny bags, and three packets in blue plastic so in all twelve packets each containing 8 Kg alleged to have been seized, but, there is no evidence that the sample was taken from one packet or each of the packets or the sample was sealed or sent in sealed cover and, hence...
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