Ram Saran Yadav vs The State of Bihar

I.P. Singh, J.—The sole appellant has been convicted u/s 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ''the Act'') and has been sentenced to undergo R.I. for three and half years with a fine of Rs. 5,000/- only and in default of payment of fine to undergo simple imprisonment for one year. The prosecution case, in short, is that on 8.5.90 at about 4 P.M., S.I. of Excise, Pradeep Kumar along with Excise Constable Satrughan Prasad and Jitender Choudhary was engaged in routine check of transports buses at zero mile, Darbhanga Road. A private bus bearing registration no. BRG 8651 was checked by the informant in presence of the conductor of the bus and a passenger, namely Sita Ram and Vijay Paswan, respectively. On suspicion the informant searched the accused Ram Saran Yadav and recovered Nepali Ganja weighing 500 grams kept in a plastic packet from his person. He, in presence of the two constables and two search witnesses seized the Nepali Ganja and prepared a seizure list. The seizure list was signed by the witnesses and one copy was handed over to the accused. The accused Ram Saran Yadav also received a copy of the seizure list and made an endorsement to that effect on the back of the original seizure. The S.I. of Excise arrested the accused Ram Saran Yadav and thereafter filed a prosecution report in Court on the next day i.e. on 9.5.1990. He deposited the recovered Ganja in the Excise Malkhana. The seizure list is Ext. 1. The endorsement in proof of the receipt of a copy thereof by accused Ram Saran is Ext. 2. Ext. 3 is the prosecution report filed by S.I. Pradeep Kumar. Ext. 4 is the forwarding note-cum-special report submitted by Pradeep Kumar to the A.C.J.M., Darbhanga. Thereafter, investigation was taken up and after completion of investigation charge sheet was submitted against the accused and accordingly, cognizance was taken and case was committed to the Court of Sessions for trial.

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

The prosecution in support of its case examined altogether two witnesses.

P.W. 1 is Shatrughan Prasad, Excise Constable. P.W. 2 is Pradeep Kumar. S.l. of Excise Department and he is the complainant himself.

The defence has also examined four D.Ws.

D.W. 1 is Ram Ruxsha Yadav. D.W. 2 is Kishan Yadav. D.W. 3 is Ram Kishore Jha and D.W. 4 is Girdhari Mishra

P.W. 1 Satrughan Prasad has stated that he was posted in Laheriasarai Excise Police Station. As he was the member of Mobile force on that day of occurrence i.e. on 8.5.90, he along with Pradeep Kumar, S.I. of Excise and Jitendra Chaudhari (not examined) got a private bus stopped on zero mile at Darbhanga. The accused Ram Saran Yadav was sitting on a seat. He was searched and from his waist beneath his Dhoti a plastic bag was recovered which was filled with Ganja. On weighing it was found 500 grams of Ganja kept in the plastic bag. A seizure list (Ext. 1) was prepared with the signature of two independent witnesses, namely, Sita Ram and Vijay Paswan. A copy of seizure list was given to the accused and his signature was taken (Ext. 2). He also identified the accused in the Court.

P.W. 2 Pradeep Kumar has also supported the Case of prosecution as narrated by P.W. 1 Satrughan Prasad. According to him, on that day of occurrence he and Shatrughan Prasad got a bus stopped bearing no. B.R.G. 8651 at zero mile. He has stated that in presence of two witnesses the person of the accused was searched and from beneath his Dhoti a packet of Nepali Ganja was recovered weighing 500 grams. He has also stated that seizure list was prepared and a copy of the same was given to the accused. According to him, he submitted the prosecution report (Ext. 3) and he kept the seized Ganja in Malkhana. He has also produced the packet of Ganja in the Court which is material Exhibit-1. He has stated that he has taken training of testing Ganja in Bhagalpur and he is himself competent to examine it and decide that the material which was seized was Ganja. He has stated that he did not send Ganja for chemical examination, for that reason.

The evidence of D.Ws. 1, 2, 3 and 4 was not convincing and as such it has not been disbelieved by the learned Court below.

Learned counsel for the appellant has submitted that though there were two independent witnesses before whom search was done, seizure list was prepared but they were not examined, as such it could not be proved whether Ganja was recovered from the possession of the appellant. It has also been submitted that the two witnesses examined are partisan witnesses and are Excise officials. Their testimony should not have been relied upon by the learned Court below. It has also been submitted that P.W. 1 in para three of his deposition has stated that there were hundreds of persons assembled when seizure and search was made but none of the independent witness has been examined which cast doubt on the prosecution case. It has also been submitted that Ganja which was recovered was not sent for chemical examination, as such it was not proved whether it was Ganja or not.

From the records and facts and circumstances of the case, it appears that mandatory provision of Section 50 has not been complied with. For search of a person it is necessary that before his search the concerned authority has to ask the accused whether he wants to be searched before the Gazetted Officer/Magistrate according to the provision of Section 50 of the Act. As such under this provision it was incumbent upon P.W. 2 to inform the appellant about his right to be searched in presence of the Gazetted Officer/Magistrate but nowhere it has come in evidence that he was ever informed about his legal right about his search. The search was conducted by P.W. 2 simply in presence of two witnesses who were also not examined in Court. That apart, the alleged Ganja was not chemically examined. P.W. 2 just declared it to be Ganja on visual examination without any chemical examination. It is true that P.W. 2 has stated that he was trained in testing Ganja but it has not been stated by him that how he came to the conclusion and what test he conducted before coming to such conclusion.

In view of above, it appears that the case of prosecution has not been conducted in right prospective and in proper manner, as such the appellant deserves benefit of doubt. He is acquitted of the charge leveled against him giving him benefit of doubt. The conviction and sentence passed by the Court below are set aside. He is set at liberty. In the result, this appeal is allowed.