Ajay Sharma vs The State of Bihar

I.P. Singh, J.—The sole Appellant has been convicted u/s 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ''the Act'') and has been sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/-.

The prosecution case, in brief, is that on 2.5.1990 at about 4.05 in the evening the informant Ram Ekbal Singh S.I. of Buxer police station alongwith A.S.I. Buxer police station, namely, Ramesh Kumar Singh and constable Yogendra Rai proceeded from the Buxer Town P.S. in connection with investigation of Town P.S. Case No. 58/90 u/s 379 of the Indian Penal Code; a different case. In the way when he reached at Piperpanti Road he received a confidential information that the Appellant was selling the Heroin illegally at his furniture shop situated at Piparpanti Road Buxer. They proceeded towards the shop of the Appellant at the said road for an enquiry and necessary step against the Appellant. They reached near the shop of the Appellant. It has been further alleged that after observing all the necessary formalities of search and seizure they entered into the house belonging to the Appellant alongwith two local witnesses. When they entered into the room situated towards west he saw that a young man was closing the wooden suit-case. It has been further stated that having seen the raiding party the young man tried to flee away pushing out the members of the raiding party but the raiding party overpowered him. In the room a wooden suitcase was kept which was searched and during search three packets (Puria) of Heroin was kept concealed in a plastic bag was found which was seized and a seizure list was prepared in presence of the aforesaid two witnesses. On enquiry the Appellant disclosed his identity and he was arrested. Thereafter a case was instituted. After completion of the investigations the police submitted chargesheet against the Appellant. Thereafter cognizance was taken and the trial concluded with the result as indicated above. Hence this appeal.

The Appellant pleaded not guilty and has stated that he has been falsely implicated in this case.

The prosecution in order to prove its case has examined altogether 4 witnesses. P.W.1 is Gopal Prasad. P.W.2 is Abdhesh Kumar Pandey. P.W.3 is Ram Ekbal Singh. P.W.4 is Md. Ayub.

P.W. 3, Ram Ekbal Singh, the informant has submitted the written report after conducting the raid in the house of the Appellant. He has stated that he had gone for the investigation of another case and when he reached at Piperpanti Road he received a confidential information that the Appellant had been engaged in selling Heroin in his furniture shop. He entered into the shop belonging to the Appellant and found that Appellant was closing the wooden suit-case. Thereafter after seeing the raiding party the Appellant tried to flee away but the raiding party overpowered him. After search the raiding party found three packets (Puria) of Heroin from the wooden box. Thereafter a seizure list was prepared. According to the prosecution the recovered Heroin was sent for chemical examination to Forensic Science Laboratory, Bihar Patna and it was found to be Heroin.

P.W.4 is a Technician in Forensic Science Laboratory. He has given the report about the seized three Puria of Heroin.

P.Ws. 1 and 2 are the formal witnesses. They have proved their signature Exs. 1 and 1/1 on the seizure list. They have stated that their signatures were obtained on plain paper and the Heroin was not recovered in their presence. They have not supported the case of the prosecution.

Learned Counsel appearing on behalf of the Appellants has submitted that the seized articles was not sealed while keeping in Malkhana even the signature of the Appellants was not obtained on the seizure list. He has further submitted that the I.O. did not weigh the contraband substance and did not mention its weight on the seizure list prepared by him. Only for the first time during the investigation he disclosed the weight of seized articles weighing to be 150 mg. in all. As such the Heroin so recovered was in small quantity as per the Government notification vide S.O. No. 827 (F). He has further submitted that for possessing of such small quantity of Heroin the Appellant should have been punished with the imprisonment of one year only as per the provisions of Section 27(a) of the Act. However this provision of Section 27(a) is for the personal consumption of Heroin and not for selling it.

The submission of the learned Counsel that the seized article was not sealed and it has been accepted by the I.O. He has also stated that since the packet (puria) was already packed so there was no need of any seal to be given over it. That apart he himself handed over the seized article to the Malkhana as such there has not been any irregularity in compliance of Section 52 of the Act. From the test report the Forensic Science Laboratory it appears that three packets of sealed articles were in a tin container and was wrapped with cloth on which there was seal which also corroborates seal impression forwarded, as such even the compliance of Section-55 of the Act has been complied with.

However, coming to the weight of the seized article I find that the I.O. for the first time had mentioned in the case diary that the articles so seized was 150 mg. in weight but it is very peculiar. The weight of three packets according to the Forensic Science Laboratory was found 148 mg., 145 mg and 160 mg. respectively, which were three times in weight mentioned by the I.O. The difference in weight of contraband substance mentioned by the I.O. and mentioned in the examination of report of Forensic Science Laboratory create doubts in veracity of the actual seizure and sampling the articles which was sent to the aforesaid laboratory for its test. Thus, there is serious discrepancy in the evidence regarding weight of Heroin in this case which gives rise doubt and possibilities of tampering with the seized articles. As such the prosecution case becomes doubtful and the Appellant deserves benefit of doubt.

Accordingly, the Appellant is acquitted of the charge levelled against him. The conviction and sentence passed by the court below is set aside. It has been stated that the Appellant is in jail. He is directed to be released forthwith, if not required in any other case.

In the result, this appeal is allowed.