Dharm Raj Pandey vs The State of Bihar

Bal Krishna Jha, J.—This appeal is directed against the order of conviction and sentence passed by the learned Sessions Judge-cum-Special Judge, Buxar in N.D.P.S. Act Case No. 16 of 2000. The learned trial Judge found the Appellant guilty u/s 20(b)(i)(old) New Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as ''the Act'') and sentenced him to undergo rigorous imprisonment for a period of 12 years with fine of Rs. 1/- lac. In default of payment of fine he was further ordered to undergo R.I. for two years.

On 29.11.2000 P.W.8, Sri Anwar Hussain, S.D.P.O. at Dumrao received secret information that huge quantity of ganja had been kept concealed in the underground room of the katara of the Appellant, Dharamraj Pandey, in village-Chhotaki Dhakaich on Arrah-Buxar main road, P.S. Krishna Brahm, District-Buxar. On receipt of this information he sent authorisation letter bearing No. 1653 dated 29.11.2000 (Ext.9) to the informant, P.W. 1 Yogendra Paswan, Circle Inspector of Brahmpur Anchal for conducting raid at the said Katara of the Appellant. On receipt of the authorisation letter the informant, Yogendra Paswan (P.W.1) went to Krishna Brahm Police Station, made sanaha and constituted raiding party-consisting of himself, Ram Prabodh Yadav, Officer-in-Charge, Dumraon P.S., Awadhesh Kumar, Officer-in-Charge, Krishna Brahm Police Station, A.S.I. N.N. Singh, A.S.I. Rabindra Singh of Krishna Brahm Police Station besides armed party. Thereafter the police team proceeded to the village-Chhotaki Dhakaich and at about 9 P.M. they reached the Katara of the Appellant, Dharamraj Pandey and found Him present there. Sri Anwar Hussain, S.D.P.O., Dumraon P.S. seems to have reached the Katara separately and shortly after the raiding party had reached there. The informant showed the authorisation letter of S.D.P.O., Dumraon (Ext. 9) to the Appellant for searching his house. The Appellant did not object and gave his written consent (Ext.1) for searching his house/katra by the police team. The informant, the police party and the witnesses gave their own search to Dharmraj Pandey and then they entered into his katara along with the witnesses, Sanjeet Pradhan and Dhanraj Singh Kushwaha. They went inside a room in the east side located in the south west comer and found a wooden box kept in the corner of the room. The wooden box was removed and they found the stairs going down into the underground room. The informant Yogendra Paswan entered in the underground room and found 23 packets of ganja kept in red colored polythene in the room. The ganja was weighed and was found three quintals 39 Kgs. and 500 gms for keeping which the Appellant failed to produce any licence. The ganja was seized, the seizure list was prepared and was signed by the witnesses-as well as by the Appellant. Small quantity of seized ganza was taken cut from each packets arid two samples were prepared (Ext. S/1 and S/2) and thereafter all the packets were separately sealed. The seizure list was marked as Ext.2 and sample signature with white covering clothes was marked as Ext.5. The Appellant was arrested and the informant, Yogendra Paswan, Police Inspector; Brahmpur Anchal, camp at Chhotaki Dhakaich recorded his own fardbeyan (Ext.4). He handed over the accused-Appellant with seized ganja and samples and his self drawn statement to the Officer-in-Charge, Krishna Brahm Police Station. Thereafter the Officer-in-Charge of Krishna Brahm Police Station forwarded the statement of the informant to the Officer-in--Charge, Brahmapur Police Station for institution of a case on the basis of which Brahmapur P.S. Case No. 232/2000 dated 30.11.2000 u/s 47(A) of the Excise Act and Section 20(b)(i)/27/29 of the Act was instituted against the Appellant, Dharm Raj Pandey, the accused Suresh Tiwari, Uma Shankar Tiwari besides the driver and khalasi of Tata 409 and unknown persons. The investigation of the case was entrusted to the Officer-in-Charge of Krishna; Brahm P.S. A.K. Prasad, P.W.5, a member of the raiding party. After usual investigation chargesheet was submitted against the Appellant showing other accused absconder under aforesaid sections. Accordingly, cognizance of the offence was taken and the case of the absconding accused was separated vide order dated 7th February, 2001 and the Appellant was put on trial

The defence of the Appellant is that he is quite innocent and has been falsely implicated in this case. The ganza was not recovered from his exclusive and conscious possession. The alleged katara from where ganza was recovered did not belong to the Appellant. It was purchased by the father of the Appellant, Jeeut Pandey, and was let out to several tenants. The defence has not examined any witness in support of its case.

The prosecution examined altogether 10 witnesses to substantiate charge against the accused Appellant. Out of them P.W.1, Yogendra Paswan, Inspector, Brahmpur Anchal, P.W.2, Rabindra Nath Singh, A.S.I, of Police, P.W.6, Nag Narain Singh, A.S.I. P.W.5, Awadhesh Kumar Prasad, Officer Incharge, Krishna Brahm Police Station, were the members of the raiding party. At the same time P.W. 5, Awadhesh Kumar Prasad, is also the Investigating Officer of this case. P.W. 8, Sri Anwar Hussain, S.D.P.O., Dumraon, was present at the time of search of the Katara of the Appellant. P.W. 3, Sanjeet Pradhan and RW4, Dhanraj Singh Kushwaha, are the seizure list witnesses and they have proved their signatures, 8/2 and 8/3. On denial of seizure in their presence both the witnesses were declared hostile by the prosecution and were put to cross examination but nothing material surfaced in their cross examination. P.W.9, Ballam Singh, the then A.S.I., of Krishna Brahm P.S. is a formal witness. He proved all the six gunny bags-of ganza seized in connection with Krishna Brahmpur P.S. Case No. 232/2000 bearing S.D. Entry No. 512 showing recovery from the house of the Appellant, Dharm Raj Pandey, (Material Ext. I to I/5). In cross examination he has stated that by mistake, on four gunny bags Krishna, Brahm P.S. Case No. 223/2000 in place of P.S. Case No. 232/2000 was written. In fact all the six gunny bags were connected with Krishna Brahm P.S. Case Number 232/2000. The numbers on all the gunny bags were written and signed by Awadhesh Kumar Prasad, P.W. 5 (Ext. A to A/5). P.W.10, Md. Yunus Khan is O.C. of Brahmpur Police Station and has proved photo copy of Brahmpur P.S. Case No. 232/2000 which was instituted u/s 307 besides various other Sections of the Indian Penal Code.

P.W. 7, Lallan Prasad Sinha is the Chemical Examiner, Excise. He has stated that he had received the sealed sample of Brahmpur (K.B.) P.S. Case No. 232/2000 for chemical test and after chemical examination he submitted his report on 5.2.2001 (Ext.6). He has further stated that on chemical examination samples were found of ganza containing ash 12.0% and raisin (T.H. Canabinol) 09.75%.

P.W.1, Yogendra Paswan, the informant, P.W.2 Rabindra Nath Singh, A.S.I., P.W.5, Awadhesh Kumar Prasad, Officer-in-Charge of Krishna Brahm Police Station, P.W.6, Nag Narain Singh, A.S.I, and P.W.8, Sri Anwar Hussain, S.D.P.O., Dumraon, are the material witnesses of this case.

The evidence of P.W.1, Yogendra Paswan, the informant is that on 29.11.2000 he was posted as Circle Inspector of Brahmpur Police Station. On that day he received a letter bearing Memo No. 1653 dated 29.11.2000 of S.D.P.O., Dumraon, authorising him for conducting raid and search of the katara of the Appellant. On receipt of the authorisation letter he made sanaha Entry No. 507 dated 29.11.2000 (Ext.7) and constituted a police team and proceeded to the P.O. Village. In presence of the S.D.P.O., Dumraon, P.W.8, Sri Anwar Hussain and the witnesses raid and search of the katara of the Appellant was conducted by the police team. He has supported the factum of the alleged seizure of the ganja from the underground room of the katara of the Appellant as outlined in his fardbeyan. His further evidence is that a seizure list was prepared and was signed by the Appellant, Dharm Raj Pandey and the independent witnesses, Sanjeet Pradhan, Sri Anwar Hussain, S.D.P.O., Dumraon, P.W. 8 and A.K. Prasad, P.W. 5. He proved the seizure list, Ext.2. A copy of the seizure list was also given to the-Appellant. He proved the signature and endorsement of the Appellant on seizure list, Ext.3. He has further stated that in five gunny bags four bundles of ganza in each of gunny bag and in one gunny bag three bundles of seized ganja were kept and sealed. He has further deposed that thereafter he gave his self statement at Krishna Brahm Police Station which was recorded by Nag Narain Singh, P.W. 6, Ext. 4. The Appellant was arrested and two samples alongwith the remaining Exhibit were taken to Krishn Brahm Police Station and were kept in Thana Malkhana. All six gunny bags containing ganza were produced in court from than the Malkhana and were proved by him. He has further stated that on two gunny begs Krishna Brahm P.S. No. 232/2000 and on four bags Krishna Brahm P.S. Case No. 223/2000 were written but on all the bags S.D. Entry No. 512 was written. In cross examination he has stated that before making search, all the members of the police party and the witnesses had given their own search before the Appellant, Dharm Raj Pandey. He has proved the S.D. Entry Nos. 507 to 512 which are in the pen of Md. Unus and bears the signature of Awadhesh Kumar Prasad, Officer-in-Charge of Krishna Brahm Police Station (Ext.7). He has also proved the authorisation letter No. 1653 dated 29.11.2000 which was written by the Reader, Raj Kumar Paswan, on the dictation of Sri Anwar Hussain, P.W.8 and also the signature of S.D.P.O. Ext. 8 & 9, PW.2, Rabindra Nath Singh, A.S.I., P.W.6, Nag Narain Singh, A.S.I, of Krishna Brahm Police Station, were the members of the raiding party. They have supported the factum of alleged search and seizure of ganza from the underground room of katara of the Appellant. They have proved their signatures on the seizure lists, Exts. 8/1 and 8/4.

PW.8, Anwar Hussain, is the S.D.P.O. of Dumraon Police Station. His evidence is that on the strength of sleuth information that huge quantity of ganza had been kept concealed in the underground room of the house/katara of the Appellant, Dharm Raj Pandey situated in village-Chhotaka Dhakaich on Ara-Buxar main road, he authorised the Circle Inspector of Brahmpur Police Station, Yogendra Paswan, P.W.1, under his letter No. 1653 dated 29.11.2000, Ext.9, for conducting raid and search of his katra. He has further stated that he was also present there at the time said and search was being carried on by the police team in presence of the independent witness. He has also supported the factum of search and seizure of the alleged 3 quintals 39 Kgs. 500 grams ganza from the underground room of the katara the Appellant in presence of the witnessed and preparation of the seizurelist. He has proved his signature on the seizurelist (Ext.8/5). In cross examination he has stated that the katra was found locked from inside and on the arrival of the police party it was opened by the Appellant himself who disclosed himself to be the owner of the katara.

P.W.5, Awadhesh Kumar Prasad, the then Officer-in-Charge of Krishna Brahm Police Station is the I.O. of this case. He has stated that on 29.11.2000 he had brought to the police station the seized ganza weighing 339.5 Kgs, two sealed plastic containers as samples, the self statement of the informant, Yogendra Paswan, alongwith the arrested accused Appellant, Dharm Nath Pandey. The sealed material Exts. were kept in Krishna Brahm P.S. Malkhana and the statement of the Appellant was forwarded to the Officer-in-Charge, Brahmpur (K.B.) Police Station for institution of a case and he proceeded with the investigation. He recorded the further statement of the informant and the statements of the witnesses, Ram Prabodh Yadav, Officer-in-Charge of Dumraon Police Station, A.S.I. Nag Narain Singh, A.S.I. Rabindra Nath Singh, Havildar Guna Samad, Constable 131 Lallu Singh, Constable 205 Kapil Muni Choudhary and seizure list witnesses Sanjit Pradhan and Dhanraj Singh. He also recorded the statement of P.W. 8, Sri Anwar Hussain, S.D.P.O., Dumraon, and inspected the P.O. He has given the description of place of occurrence with boundary at paragraphs 4/5/6 of his evidence. His attention was drawn to the Statements of the seizurelist witnesses recorded by him u/s 161 Code of Criminal Procedure and he stated that both the witnesses had supported the factum of search and seizure of ganza from the underground room of the Appellant in their presence. He has further stated that samples were sent to the chemical examiner, Patna and after chemical examination its report was received. The sample was found of ganza. He, has proved the chemical examination report (Ext.6).

Learned Counsel for the Appellant submitted that there has been violation of the mandatory legal provision of Sections 41, 42, 52, 55 and 57 of the Act which has vitiated the trial and conviction of the Appellant. He placed his reliance on the case of Mohinder Kumar Vs. The State, Panaji, Goa, wherein it has been held that:

chance recovery of Narcotic Drugs by a police officer, not being an empowered officer procedure to be followed by him-non compliance with mandatory re-quirements of the provisions vitiates the conviction.

He first contended that u/s 41(2) of the Act only the empowered officer can give authorisation to his subordinate officer to carry out the arrest of a person or search. If there is contravention that would affect the prosecution case, trial as well as conviction. In this case Shri Anwar Hussain, S.D.P.O. (P.W.8) was empowered u/s 41(2) of the Act for issuing search authorisation has not been proved by the if prosecution by producing any general or special order of the State Government.

Section 41(2) of the Act reads as follows:

Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.

A plain reading of the above provision indicates that only an officer empowered in this behalf by a general or special order of a Central Government or State Government as the case may be, can give the authorisation to his subordinate officer to carry out a search. If an empowered officer or an authorized officer u/s 41(2) of the Act carries out search he would be doing so under the provision of Sections 100 and 165 of the Code of Criminal Procedure.

On the other hand, learned A.P.P., however, contended that in presence of P.W.8, Sri Anwar Hussain, S.D.P.O., Dumraon, a gazetted officer, Katara of the Appellant was searched, ganza was seized and he was arrested, so, there has been no violation of the provision of Section 41(2) of the Act.

It was next contended for the Appellant that there has not been the compliance of the mandatory provisions of Section 42(1) of the Act according to which the empowered officer of getting information must reduce the same in writing. In the present case the information received by S.D.P.O., Shri Anwar Hussain, P.W.8, was not reduced in writing, so, there has been non-compliance of the mandatory provision affecting the entire trial and conviction of the Appellant.

Section 42(1) of the Act provides power of entry, search, seizure and arrest without warrant or authorisation. It may be pointed out here that in the present case on obtaining authorisation letter P.W.1, Yogendra Paswan, Inspector of Brahmpur Anchal, conducted search in presence of gazetted officer, S.D.P.O., Sri Anwar Hussain, P.W.8, so, the raid can be said to have been effected u/s 41(2) of the Act and not u/s 42(1) of the Act. The officer u/s 41(2) of the Act was not required to reduce the received information in writing. In the case of State of Orissa v. S. Mohanty and Ors. reported in 2000 S.C.C. (Cri.) 229, the apex Court held that:

Executive Magistrate, Deputy Superintendent of Excise, Sub-Inspector of Excise and other subordinate staff, while on patrolling duty, receiving information that the accused was keeping charas in is house and that he was dealing in such narcotic substances. Therefore, the Deputy Superintendent, Excise authorising his Sub-Inspector to search the accused''s house and the Deputy Superintendent, Excise himself accompanying them and getting the raid and search and seizure accomplished under his own instructions and supervision�In such circumstances, the raid, held, was u/s 41 and not u/s 42.

The learned Counsel for the Appellant further contended that there has also been violation of the mandatory provision of Section 52(2), (3) and (A) of the Act according to which the authorised officer has to forward every arrested person and article seized, to the officer incharge of the nearest police station. In the present case, Awadhesh Kumar Prasad, the Investigating Officer, was the Officer-in-Charge of Krishna Brahm Police Station. The F.I.R. of the case and material exhibits should have been produced in the Brahmpur Police Station which has not been done in this case.

It has come in the evidence that Krishna Brahma Police Station was the nearest Police station from the place of occurrence, so, the arrested accused with seized materials were produced at the Krishna Brahma Police Station and the Exts. were kept in the thana Malkhana there, so, in my view there has not been violation of the mandatory provision of Section 52(2) and (3) of the Act.

It was further contended for the Appellant that the provision of section 55 of the Act has also not been complied with according to which an officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all sample so taken shall also be sealed with a seal of the officer-in-charge of the police station According to him in the present case samples of the seized ganza were prepared at the spot and seal was affixed on the seized ganza as well as on the samples there by the informant Yogendra Sharma, the Circle Inspector, which was against the mandatory provision of section. Learned Counsel for the Appellant further contended that there has been non-compliance of the Section 57 of the Act according to which whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.

In this context it may be pointed out here that the provisions of Sections 55 and 57 of the Act relate to the steps to be taken by the concerned officer after effecting search, seizure and arrest and are not mandatory in nature.

It was again contended that P.W.5, A.K. Prasad, the I.O. was a member of the raiding party, so, he assumed the position, of fulfledged witness. Had he not been the investigating officer his statement would have been recorded u/s 161 Code of Criminal Procedure and the Appellant would have the opportunity to impeach his testimony under Sections 157 and 145 of the Indian Evidence Act.

I do not find any merit in this contention. Under the Act there is no provision that detecting officer and investigating officer cannot be one and the same person.

It was further contended that the prosecution has failed to produce any cogent evidence that the Appellant had the knowledge of the concealment of the ganza in the underground room of the katara and he was the owner and was in an exclusive possession of the katara.

It is apparent from the above discussed evidence that when the informant with the police team arrived at katara of the Appellant and it was found locked from inside. The lock was opened by the Appellant himself. He disclosed himself to be the owner of the katara. On disclosing the Identity of the informant and showing the authorisation letter of S.D.P.O., Dumraon, I to him he gave written consent for the search of katara. His written consent is Ext.1 in which it is clearly mentioned that:

MAIN APNI SWECHHA SE KAH RAHA HUN KI HAMARI TATHA HAMAREY GHAR KI TALASI AAP HI LE HAMKO KOI APATTI NAHI HAI.

The Appellant has taken a defence that the alleged katara was purchased by his father, but Pandey and was let out to the tenants but the defence has failed to produce any oral or documentary evidence in support of it.

It was lastly contended that no independent witness has been examined by the prosecution in this case and P.W.3, Sanjeet Pradhan and P.W.4, Dhan Raj Singh who are said to be the witnesses on the seizure list have turned hostile and stated that nothing was recovered in their presence. The only witness on the point of search/seizure are the police officers who are highly interested and cannot be accepted for the conviction of the Appellant.

Admittedly P.Ws.3 and 4 turned hostile and did not support the search and seizure of the ganza but that only cannot be the ground to disbelieve the search, seizure and recovery of ganza from the underground room of the katara of the Appellant. P.Ws. 1, 2, 5, 6 and 8 are the police officials but their evidence is consistent on all material points of search and seizure. There is no evidence that the police officials had any animosity with the Appellant. Further no contradiction has figured in their testimony to discard their evidence.

Thus, I come to the conclusion that the prosecution has proved the charge against the Appellant beyond all reasonable doubts and I find no wrong in the order of conviction recorded by the court below against him.

There is no merit in this appeal and it is dismissed. The order of conviction and sentence passed against the Appellant is maintained. He is in custody, so he will serve out the remaining period of sentence imposed upon him.

Aftab Alam, J.

I agree.