Hira Sah vs Union of India (UOI)

I.P. Singh, J.—The sole Appellant has been convicted under Sections 20(b) (ii) and 23 of the Narcotic Drugs and Psychotropic Substances Act (for short ''N.D.P.S. Act'') and sentenced to undergorigorous imprisonment for ten years with a fine of Rs. 100000/- (one lac), in default, to undergo rigorous imprisonment for a further period of two years u/s 20(b) (ii) (c) of the N.D.P.S. Act. (sic)

Prosecution case, in short, according to Sri. Prem Kumar, Inspector, Customs (Preventive) Circle, Bettiah who lodged report before Sessions Judge, West Champaran Bettiah is that a secret information through a casual informer was received on telephone at about 20.00 hours on 14.2.01 regarding concealment of Ganja in the house of Sri Rameshwar Sah resident of village Jabdaul, Chanpatia P.S. The preventive party of Bettiah Customs comprising team of officers namely Sri D.P. Gupta, Supdt. Customs (P) Circle, Bettiah, Prem Kumar, Inspector Customs (P) Circle, Bettiah, Sri L.R. Tudu, Havaldar Customs (P) Circle, Bettiah Sri K.P. Raut, Sepoy, Customs (P) Circle Bettiah and others customs officers raided the house of Sr. Rameshwar Sah at about 22.30 hours in presence of independent witnesses but nothing could be recovered. When the party was ready to return back in the meantime the informer again came and informed about the hut of Shri Hira Sah (Appellant) in witch Ganja was concealed. The raiding Party searched the hut of accused Hira Sah at 23 hours in presence of two independent witnesses namely Bhola Sah and Usman Ali which revealed recovery of two funny bags. The bags were opened and found to contain Ganja in nine packets. The Appellant was asked to produce legal documents for its legal possession but he could not produce any document. The recovered (sic)a was weighed in presence of two independent witnesses and the said Ganja weighing 50 Kg. net. It was seized under the provision of Section 43 of the N.D.P.S. Act (sic) after recording the statement of the Appellant it is stated further that after get(sic) consent of the Punches the seized (sic) and the Appellant were brought to (sic) Circle Office Customs (P) Bettiah for her interrogation under the provision of Section 67 of the said Act. Hira Sah accorded his guilt in both voluntary and inter(sic)tory statement. Hira Sah stated that Ganja in question belonged to one Sri Rameshwar Sah resident of village Jabdaul, who put the said Ganja forcibly 10 to 15 minutes before the search in his house. Rameshwar Sah was summoned u/s 67 of the N.D.P.S. Act by the Superintendent Customs (Prev.) Circle, Bettiah and interrogated by him on 10.4.2001 in which Shri Rameshwar Sah has stated that his house was searched by the Customs Officials Bettiah at 22.30 hours on 14.2.2001 but no recovery had been made. A representative sample from the seized Ganja was drawn for sending it to chemical experts for its purity test after observing the procedure of drawing of sample. On receipt of the prosecution report against accused Hira Sah along with interrogatory statement cognizance was taken against the Appellant and the case was transferred to the Sessions Court for disposal where the trial concluded with the result as stated above.

The Appellant pleaded not guilty.

Prosecution in support of its case examined altogether 10 witnesses. P.W.1 is L.R. Tuddu, Havaldar (Custom), P.W.2 is Prem Kumar, Inspector in Custom (Informant), P.W.3 is Kali Pd. Raut, a constable in Custom, P.W.4 is Surendra Prasad Singh, his evidence has been expunged, P.W.5 is Tarakant Pd, Constable in Central Excise, P.W.6 is Paras Nath Gond, Custom Deptt., P.W.7 is Om Prakash Gupta, Constable in Custom, P.W.8 is Bhola Sao, P.W.9 is Devendra Pd. Gupta, Superintendent in Custom and P.W.10 is Ramdhyan Chaudhary, constable in custom deptt.

The defence has also examined two witnesses D.W.1 is Surendra Tiwary and D.W.2 is Trilochan Dubey.

P.W. 2, the complainant has supported the case of prosecution. According to him on 15.2.2001 he was posted at Bettiah as Inspector, Custom. On that day of occurrence he received confidential information regarding concealment of Ganja. Having such information he organised a raiding party comprising a team of officers and raided the house of one Rameshwar Sah at about 20 hours in presence of independent witnesses but nothing could be recovered from there. When the raiding party was returning back in the meantime it was informed that in the house of Appellant Hira Sah Ganja was concealed. The raiding party searched the house of the Appellant in presence of two independent witnesses from where two gunny bags were recovered. The bags were opened and nine packets of Ganja were found. After weighing it was found 50 Kg. The same was seized under the provision of Section 43. of the N.D.P.S. Act and the same was brought in the office of the Superintendent of Custom. He has stated that after getting the consent of Panches the seized Ganja was kept in the Malkhana. According to him Appellant Hira was again produced before the Superintendent Custom Circle Bettiah for interrogation and his statement was recorded and thereafter he was forwarded in the judicial custody. The other witnesses P.Ws. 1, 3, 5, 6, 7 and 10 all have supported the version of P.W.2 complainant. P.W. 9, Devendra Pd. Gupta, Superintendent, Custom Circle Bettiah has supported the version of the complainant and stated that he recorded interrogatory statement of Hira. According to him he had written the interrogatory statement (Ext. 11) of Hira Sah, Ext. 11. He seized the article and kept in the Malkhana. In his cross examination he has admitted that the seized Ganja was sent to Gajipur (U.P.) Govt. Laboratcry for chemical analysis. He has also stated that while the raid was conducted in the house of Appellant he was also standing outside the house of Hira Sah.

Learned Counsel for the Appellant has submitted that from the evidence adduced before the court below the allegation of seizure of Ganja from the house of Appellant has not been proved because except the complainant nobody has corroborated search and seizure from the house of the Appellant. He has further submitted that no independent witness has been examined on behalf of the prosecution. It was further submitted that there is violation of Section 55 of the N.D.P.S. Act as there was no evidence to prove that the seized article was actually Ganja, because the sampling of seized article was not done in presence of accused or seizure list witnesses.

From the deposition of P.W.2 who was Inspector Custom it appears that is Panchnama was prepared for the recovery of Ganja which was written by him on which the Appellant Hira Sah and Bhola Sah (P.W.8) and one Usman Ali put their signatures. It also appears that three samples 25 Gr. each were prepared and kept in a envelop which was seized. From para graph 3 of deposition of P.W.2, complainant it appears that the chemical report of seized article was received from Gajipur (U.P.) Ext. 9. From Ext. 9 which is a report from Govt. Opium Alkaloid Works, Gajipur It appears that they received sample which was duly sealed. According to the report it was Ganja. As such, the submission of the learned Counsel that even the article which was seized could not be proved to be Ganja is not acceptable in view of deposition of witnesses. However, it appears that, the Ganja which was seized was not kept in Police Malkhana as required under the provision of Section 55 of the N.D.P.S. Act and even the sample was sent by the Superintendent of Custom for the test to the Opium Factory Laboratory. Only P.W. 2 the complainant proved the case that two if Ganja weighing 50 Kg. was recovom the house of the Appellant. P.W.1 cross examination has stated that was recovered in his presence. P.W.3 so stated that the Ganja was seized Inspector and Superintendent Cus(sic)ut he did not know the name of (sic) from whose house Ganja was re(sic)d. P.W.9, the Custom Superintend wever supported that the Ganja was red from the house of Appellant. On(sic)estion of non-compliance of the pro(sic) of Section 55 of the N.D.P.S. Act (sic)d counsel has relied on a decision in case of Lal Babu Sah Vs. The State of Bihar in which it was hat the Appellant convicted on the of sample taken from the article kept (sic)ce Malkhana without any sealing or (sic)ication mark, conviction was not (sic) But in this case the samples were (sic)ly sealed and kept in a envelop. As his decision does not support the of the Appellant. In the present case prosecution there is clear noncompli(sic) of the provision of Section 55 of the (sic). Act which reads as follows:

Police to take charge of article seized and delivered.-An Officer(sic)arge of a police statin snail take (sic)ge of and keep in safe custody, (sic)ing the orders of the Magistrate, all (sic)es seized under this Act within the (sic)area of that police station and (sic) may be delivered to him, and allow any officer who may accom(sic) such articles to the police station (sic)o may be deputed for the purpose, (sic)ix his seal to such articles or to samples of and from them and all (sic)les so taken shall also be sealed (sic) seal of the officer-in-charge of the(sic) station

according to the provision of section Officer-in-charge of Police Station (sic)e charge and keep in safe custody the seized article. This provision further requires that the officer who had brought such article shall be allowed to affix his seal and also to take sample which shall also be sealed with seal of the officer-in-charge of police station.

In this Act such mandatory provision has been made because there is heavy punishment if a person is found guilty of offences under this Act. This provision of keeping the seized article after affixing seal in safe custody of police station has been made mandatory so that there shall not be addition to the article so kept in the custody in order to falsely implicate a person. That apart this mandatory provision has involved officer-in-charge of P.S. to take charge of the article so seized and not any other officer subordinate to him, certainly not custom officers.

From the deposition of P.Ws. 2 and 3 it appears that the material so seized was kept in the godown of Custom Department which has itself vitiated the trial and only on this ground the conviction of the Appellant is not sustainable and he deserves acquittal. Accordingly, conviction and sentence passed by the court below are set aside It has been stated that the Appellant is (sic) The appelant is directed to be released forthwith, if not wanted in any other case. Accordingly, this appeal is allowed.