Pasupati Singh @ Pasupat Singh vs The State of Bihar

B.N.P. Singh, J.—The Appellant suffered conviction u/s 20(b)(II) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "N.D.P.S. Act") and also u/s 47(a) of the Excise Act on accusation of being found in possession of a Narcotic Substance.

The factual matrix are that on a tip of information that the Appellant who was residing as renter in the house of Babban Rai was carrying trade in heroin, Buxar Police after recording a Sanha entry, led a trap in the said house in presence of Janardan Rai and Kali Prasad when there had been seizure of offending article said to be heroin from conscious possession of the Appellant for which he did not have valid authority. A police case was registered and, as usual, investigation commenced, on conclusion of which police laid chargesheet before the court and the Appellant was put on trial. In the eventual trial that commenced, the State examined altogether two witnesses including Reporting Officer and also seizure list witness namely Kali Prasad P.W. 2.

The defence of the Appellant be- fore the court below and also this Court had been denial of complicity as alleged by the State. However, the trial court while rejecting the plea of innocence of the Appellant primarily relying on testimony of Reporting Officer and also the seizure list witness, who had turned volte face to the State, recorded finding of guilt and sentenced him in the manner stated which is impugned in this appeal.

Two fold contentions were raised at bar on behalf of the Appellant and it is sought to be urged that contrary to requirement of Section 50 of the N.D.P.S. Act which makes it obligatory for the Inspecting Authority to make the accused conscious of his right for a search before a Gazetted Officer or a Magistrate, the Appellant was not given liberty to be examined before a Gazetted Officer. In quick succession, it is sought to be urged that even if it is presumed that the Inspecting Authority was a Gazetted Officer, that would not absolve him from responsibility of asking the accused to exercise his right to get him examined before the Gazetted Officer, and reliance on this score had been placed on a decision of the Apex Court reported In 2000 (4) PLJR (SC) 124 (Ahmed v. State of Gujarat). Other contention raised on behalf of the Appellant was that barring the bald assertion made by the State that the offending article which was found in possession of the Appellant was heroin, there has been no finding of any Chemical Examiner to make the court believe that what was found in possession of the Appellant was nothing but a narcotic substance. Yet other argument is that even though search was shown to have been conducted in presence of two seizure list witnesses, Kali Prasad one of them examined at trial, had turned volte face to the State.

At trial, the Reporting Officer reiterating his earliest version, who set the judicial process in motion, stated about inspection of the rented house of the Appellant, when he was allegedly found in possession of 5 grams of heroin. As has been stated earlier, one of the seizure list witnesses examined had turned volte face, lending no assurance to the prosecution allegation about seizure of offending article from possession of the Appellant.

Taking the prosecution version to be true on its face value and having given my bestowed and anxious consideration to the accusations attributed to the Appellant, I find that there has been no corroboration of the sole testimony of the Reporting Officer about seizure of offending article from possession of the Appellant. Needless to say that other seizure list witness namely Janardan Rai was not brought in the witness box and the most serious infirmity that has crept in the prosecution version was that though the Appellant had been saddled with accusation of possessing narcotic substance, there has been no finding of the Chemical Examiner about seized article to be narcotic drugs. Acceptance of such bald assertion made by the Police Officer without corroboration of finding of chemical examiner is fraught with serious consequences, as that may amount to giving licence to the prosecuting agency for prosecution of any one, just by orally making such a charge without being encumbered with the liability of proving the charge beyond reasonable doubt with cogent evidence.

Regard being had to the contentions raised at bar and also the serious infirmity that has crept in the prosecution version, I find that the conviction and sentence fastened against the Appellant cannot be sustained in the eye of law. The finding is accordingly set aside and the Appellant is acquitted of charge. Appellant who is shown to be in custody is directed to be released forthwith, if not wanted in any other case. He is also discharged from the liability of bail bonds. The appeal accordingly succeeds.