Deepak Kumar vs The State of Bihar

Gopal Prasad, J.—The appellant Deepak Kumar @ Dipu @ Deepak Kumar Singh @ Dipu Singh has been convicted under section 20(b)(i) and section 20(b)(ii)(c) of the N.D.P.S. Act and have been sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 1 lac and in case of non-payment of fine to undergo rigorous imprisonment for one year.

Prosecution case has alleged in the first information report by the informant Basuki Paswan (P.W. 5) that while he was in law and order duty at Patel Bus Stand, Ara along with A.S.I. Shankar Ram in armed force then at about 2.30 p.m. he saw three boys were with bags in suspicious condition. The informant and his party asked the three boys to stop but all the three boys were started fleeing away and then police party chased and catch hold of the boy along with a grey bag in his hand. When the name of the boys were asked before the two witnesses Gopal Chaudhary (P.W. 1) and Gautam Kumar (not examined), then he disclosed his name as Deepak Kumar Singh @ Dipu Singh. He also disclosed the name of his associates as Santosh Singh. The smell of ganja was coming out from the seized bag of Dipu Singh and then the Circle Officer, Ara Sadar was informed on telephone Rajiv Ranjan, C.O. Sadar reached there. In his presence as well as in presence of the witnesses they searched the bag of Deepak Kumar Singh. Three packets of ganja were recovered. One packet of ganja was found sealed in blue colour plastic cover was weighted and found 10 kg. and two packets of blue colour plastic cover ganja containing 5 kg. ganja each were recovered. Hence the total ganja were recovered from the bag and 20 kg. No paper was produced by the appellant Deepak Kumar Singh nor he gave any satisfactory reply. Hence the seizure list was prepared before the two witnesses as well as the Circle Officer. On enquiry, Deepak Singh disclosed that there is ganja in a bag on his associates which has been kept in Durga Mandir in the premises of the Railway Station. They proceeded to Durga Asthan in the premises of the Ara Station and their three green bags were found each contained 10 kg. of ganja and the seizure list of those three packets of ganja were prepared before Vikash Prasad and Dhiran Kumar. Further case is that from the seized ganja about 5 grams were taken out in 7 packets as exhibits.

On the fardbeyan of the informant Basuki Paswan the F.I.R. was lodged under sections 20 and 22 of the N.D.P.S. Act and the investigation was handed over to Mr. Om Prakash Paswan, S.I. (P.W. 4). The I.O. (P.W. 4) recorded the statement of the witnesses inspected the first and second P.O. forwarded the accused to the Court. He wrote a letter to the District Judge for the chemical examination of the seized article and on his permission send the sample of the seized article to the Forensic Science Laboratory, Patna and Calcutta for chemical examination. After obtaining the supervision note of the S.P. as well as on the order of the superior Police Officer submitted a charge sheet against Deepak Kumar @ Dipu.

After submission of the charge sheet, the cognizance was taken. The charge was framed and trial proceeded for the offence under section 20(b) of the N.D.P.S. Act and for the offence under section 20(b)(ii)(c) of the Act for having in possession nowhere 20 kgms. of ganja.

During the trial, six witnesses were examined by the prosecution to prove the charges. P.W. 1 is Gopal Chaudhary, a seizure list witness and though has proved his signature on the seizure list marked as Ext. 1 but has not supported the search and seizure and were declared hostile similarly P.W. 2 Vishal Prasad and P.W. 3 Dhiren Kumar though were seizure list witnesses but have not supported the search and seizure though proved their signature on the seizure list marked as Exts. 2 and 2/1 respectively and has been declared hostile by the prosecution.

P.W. 5 is the informant. He has supported the prosecution case regarding the apprehension of the accused persons in suspicious circumstance and recovery of the ganja from the bag in his possession and has stated that the seizure list was prepared by Shankar Ram (P.W. 6) and has deposed that at the disclosure of the appellant Dipu they went to the second P.O. at Durga Asthan and by the side of the road 30 kgms. of ganja were recovered, the seizure list was prepared by Shankar Ram. However, he has proved his signature on the fardbeyan marked as Ext. 3.

P.W. 6 is Shankar Ram. He has also supported the prosecution case regarding apprehension of the appellant and recovered of ganja in his possession and on his disclosure, 30 kgms. ganja were recovered from three packets at Durga Asthan and he prepared the seizure list of the recovered ganja on two different places and has proved the seizure list marked as Exts. 5 and 6. However, he has stated that from the packets of the ganja recovered, he take out the sample of 5 grams each and he has also proved the formal F.I.R. marked as Ext. 7. However, in his cross examination as stated that the sample taken from the seized article were signed by him as well as Basuki Paswan (P.W. 5) though he has stated that the sample taken was not sealed but the said sample was brought in Court in sealed packet and the said sealed packet was sent by the Court for chemical examination. However, he stated that he did not remember that whether sample which was sealed bear his signature as well as the signature of Basuki Paswan or not. He has further stated that three packets each containing 5 grams of sample was taken.

P.W. 4 is the I.O. and P.W. 4 has deposed that he took up the investigation on 27.6.2011 and has stated that he inspected the P.O. He has further stated in the evidence that the sample was sealed contained 20 grams of the seized article and the said sample was sealed on 4.7.2011 but he has stated in paragraphs 2 and 5 that 5 grams of the sample seized was taken in the three packets separately.

The trial court taking into consideration of the evidence convicted the appellant and sentenced the appellant as mentioned above.

Learned counsel for the appellant submits that the occurrence took place on 27.6.2011 and it is alleged that the ganja was recovered from the possession of the appellant as well as on his disclosure from Durga Asthan in the premises of the Railway Station and the said ganja was seized and seizure list was prepared. It has also been mentioned that the informant himself take out 5 grams of ganja as sample from each of the packet for sending to the Forensic Science Laboratory but there is no mention that the article seized was sealed or not. There is no mention that the sample taken out from the seized article was sealed or not. There is no evidence that where the seized article and the representative sample were kept. Neither the representative sample of the seized article nor the seized article were produced before the Court during the trial, nor any certificate regarding the article seized having been produced before a Magistrate for certification of the seized article nor the sample was taken before any Magistrate nor the photograph of the seized article were taken nor substance nor any such photograph of gratification of the article has been produced rather to the contrary as stated he took out 20 grams of sample from each of the packet but neither the article seized nor the said representative sample were produced before any Magistrate nor any certification of those produced before the Magistrate have been proved nor the articles themselves have been produced in Court during the trial. There is no mention where the articles were kept. Neither the Malkhana Register has been produced nor the article seized produce. Hence there is clear violation of sections 52(A), 55 and 57 of the NDPS Act as there is no evidence that the article seized kept in under seal of the officer-in-charge of police station. This cause serious prejudiced as it doubts whether the article sent to the Forensic Science Laboratory were from the article seized from the possession of the appellant. It has further been contended that the F.S.L. report suggest that the sample was sent on 4.7.2011 as per Memo No. 642 dated 4.7.2011 through passenger Shambhu Kumar Singh but no weight has been mentioned regarding the sample received and hence contend that it is not to convict the appellant on the basis of the reports in view of violation of section 52(A), 55 and 57 of the Act.

Learned counsel for the State however contended that the article seized were kept in Malkhana but he is unable to point out the evidence either of the witness to ever depose that the article seized were kept in Malkhana nor the Malkhana has been proved nor the article seized has been produced as material exhibit. However, it has been mentioned that the witness has proved the seizure of the article from the possession of the appellant and hence the prosecution has been proved.

Having regard to the respective submission, I proceed to consider the evidence of the witnesses in the light of the submission made by the learned counsel for the appellant. The prosecution case has alleged that the written report by the informant that while on law and order duty at Patel Bus Stand, Ara then he saw three boys in suspicious stay with bag in their hand and when the informant asked to stop them then they started fleeing away and thereafter police chased and catch hold of one person and from his bag 20 kgms. of ganja recovered in three packets, one containing 10 kgms. and the two packets containing 5 kgms. each and thereafter he disclosed that the name of the two persons along with him who flee away and also disclosed that they have kept ganja 30 kgms. at Durga Asthan in the premises of Railway Station and thereafter, police followed and recovered 30 kgms. ganja near Durga Asthan by the said of the informant. The seizure list was prepared and thereafter, P.Ws. 5 and 6 are the informant and the Police Officer who were at the time of the search and seizure and apprehension of the accused and they prepared the seizure list marked as Exts. 5 and 6 and they have deposed that they also took sample of 5 kgms. each and five gram ganja from each packet and have stated that they produced the victim as well as the seized article to the Officer-in-Charge of the police station and the investigation was handed over to Om Prakash Paswan (P.W. 2) the I.O. of the case. However, the articles seized were produced on 27.6.2011 itself and was handed over to the I.O. However, P.W. 4 filed petition before the District Judge and on 4.7.2011 the sample was taken out. However from the evidence of P.Ws. 5 and 6, it is apparent that the articles seized were not sealed nor the sample taken was seized. There is no evidence that where the article seized was kept and the sample taken sealed by the informant were kept. However, as per evidence of P.W. 4 that he filed petition and thereafter the sample was taken. He took 20 grams sample from each of packet and sent to Forensic Science Laboratory, as per direction of the District Judge, but there is no mention where the articles were kept from the date of occurrence i.e. from 27.6.2011 to 4.7.2011. From the evidence, it is apparent that the articles seized were not produced before the Court on the date of occurrence when the accused was remanded to the Court. There is no reference that the articles were seized by the Officer-in-Charge of the Police Station in the Malkhana. There is no evidence that the articles seized were sealed either at the time of occurrence or at the police station and the articles seized were produced in Court for taking sample and sample was taken and sent but there is no mention that where the articles seized were kept. However, section 52(A) of the N.D.P.S. Act provides for disposal of the seized Narcotic Drugs and Psychotropic Substance and it provides that when Narcotic Drugs or Psychotropic Substance has been seized and forwarded to the Officer-in-Charge of the nearest police station under section 53 of the Act. The officer referred to prepare an inventory for such Narcotic Drugs or Psychotropic Substance containing such details relating to their description quality, quantity mode of packing marks number of such other identifying particular of the Narcotic Drugs or Psychotropic Substance and shall make an application to any Magistrate for the purpose of (a) certifying the correctness of the inventory so prepared, (b) for taking in presence of such Magistrate, photograph of such drugs or substance and certifying such photograph as true, (c) allowing to draw representative of sample of drugs or substance in presence of such Magistrate and certifying the correctness of any list of sample so drawn and (d) when any application is made, the Magistrate shall soon allow the application. However, there is no mention in the evidence that any such steps were taken for certification or correctness of the inventory made.

However, section 55 of the Act provides that the police to take charge of articles seized and delivered and it provides that Officer-in-Charge of the Police Station shall take charge and keep 8 in safe custody pending the order of Magistrate all the articles seized under this Act within the local area of the police station and it may be delivered to him, and shall allow to any officer who may be companied of such articles to the police station or but may depute for the purpose of seal of such article or to take sample and from them and all sample so taken shall also be sealed.

However, having regard to the fact there is non-compliance of section 55 of the Act. Neither the articles seized nor even representative sample taken has been produced before the Officer-in-Charge of the Police Station. However, the articles seized were not sealed with the seal of the Officer-in-Charge of the Police Station nor the sample taken by the informant produced before the Magistrate nor before the Officer-in-Charge to seal them with the seal of the Officer-in-Charge of the Police Station nor there is evidence that the articles were kept in safe custody nor the Malkhana Register has been produced nor there is evidence that the articles seized were kept in Malkhana under the seal of the Police Station.

Section 57 of the N.D.P.S. Act further provides that whenever any person to make any arrest or seizure under this Act he shall within 48 hours next after such arrest or seizure to make full report of all particulars of such arrest to his immediate official superior, however, this provision has also not been observed.

Hence, having regard to the fact that the articles seized were not sealed either at the spot or even at the police station with the seal of the Officer-in-Charge of the Police Station nor the sample taken by the informant was either sealed or sealed by the Officer-in-Charge of the Police Station rather the I.O. in his deposition as stated that he did not get the said 5 grams sample taken by the informant rather he is in his evidence. He has stated that he took out 20 grams of the sample as sample of the seized articles. However, there is no mention that where the seized articles were kept from 27.6.2011 till 4.7.2011 nor there is any mention that the other articles were sealed or kept in safe place and hence the sample taken out of the articles seized which was neither sealed at the time of occurrence or there is no evidence that the seized articles were kept in safe custody with the seal of the Officer-in-Charge of the Police Station till the sample was taken before the Court on 4.7.2011 and hence it is not safe to rely on the report of the sample taken on 4.7.2011 to record a conviction nor the seized articles have been produced before the Court during the trial nor the certification of any Magistrate regarding the inventory nor the Malkhana Register having been produced in Court and hence it is not safe to rely on the report of the F.S.L. based on a sample taken on 4.7.2011. Hence order of conviction and sentence recorded by the trial court is hereby set aside and the appeal is allowed. Appellant, namely, Deepak Kumar @ Dipu @ Deepak Kumar Singh @ Dipu Singh, who is in custody, is hereby released forthwith if not wanted in any other case.